M V Kotwal v. State

ORDER (ORAL) ! For detailed order, the decisiori dated November, 2018 in Crl.M.G. 1873/2015 may be referred .to. ' K GA Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. ^:+ ,{ f ? \ { ; i '+

9.^ I IN THE HIGH COURT OF DELHI AT NEW DELHI , Reserved on: 3"'October, 2018 Pronounced on: 19^''November, 2018 CRL.M.C. 1873/2015 & CRL.M.A. 6732/2015 S.N. SUBRAP-MANYAM Petitioner Through: jVIr. Vikas Pahwa, Sr. Advocate with Ms. Sima Gulati, Mr. Subhash Gulati, Mr.Shailesh Poddar, Mr. Vinit Arora & Mr. Sumit Saini, Advocates. • versus., SI ATE I ^ , ' • Respondent Through:' Mi'. Mukesh Kumar, APR. CRL.M.C. 2064/2015 , I ' DLF UNIVERSAL LTO. THR.. ITS AUTHORIZED REPRESENTTIVE Petitioner Through: , .ivE^- Ramesh Gupta, Sr. Advocate with ^ A!V ./^hSande;ep'Kapur, Mr. Vivek Suri, I L |-Mr. Karan Seth & Mr. Mayank Datta, \

Advs. '■ "versus., I* . 'I,- ' '• STATE NOT OF DELHI TIJR. FACTORY INSPECTOR ;

Respondent Thrpugh: Mr. Mukesh Kumar, APP. ^ . - • CRL.M.C. 20^6/2015 RAJEEV TALWAR^ Petitioner Thrpugh: , i Mr..Sidharth Luthra, Sr. Adyocate with Mr. Sandeep Kapur, Mr.'Vivek ■ s ■ S.uri, Mr. Kara Seth, Mr. Mayank ' i • Crl M.C. 1873/2015 & connected i \ . t . I • ?. + Datta & Ml'. Aashn^et Singh, Advocates, versus ' STATE NCT OF DELHI Respondent Through: Mr. Mukesh Kumar, APP. CRL.M.C" 2067/2015 MOHITGUJRAL Petitioner Through: Mr. Ramesh Gupta, Sr. Advocate with Mr. Sandeep Kapur, Mr. Vivek Suri, Mr. Karan Seth & Mr. Mayank Datta, Advs. O versus ' - STATE NCT, OF DELHI THR. FACTORY INSPECTOR Respondent Through: Mr. Mukesh Kumar, APP. + CRL.M.C. 2068/2015 7363/2015 K VENKATARAMAjt^;.. , Petitioner Through:, p\®a|^i^ishnan. Sr. Advocate with r .f^:;M^^^;Agarwal, Mr. Anuj Advocates, versus I O STATE I - " » Respondent Through; Mr. Mukesh Kumar, APP. CRL.M.C. 2069/2015 & CRL.M.A. 7366/2015 A M NAIK Petitioner Through: Mr. Kapil Sibbal , & Mi'. Dayanlcrishnan, Sr. Advocates with Mr. Mahesh Agarwal, Mr. Anuj Malhotra & Mr. Anirudh Bhat, Advocates. + ; 'CrL M.C. 1873/2015 & connected I I \ c versus STATE & ORS. ..... Respondents Through: Mr. Mukesh Kumar, APP. + • CRL.M.C. 2070/201^ & CRL.M.A. 7369/2015 MVKOTWAL Petitioner' Through;! Mr. Dayankrishnan, Sr. Advocate with Mr. Mahesh Agarwal, Mr. Anuj Maihotra & Mr. Anirudh Bhat, Advocates., versus - Respondents Mr. Mukesh Kumar, APP. STATE & ORS. Through + CRL.M.C. 2071/201|5.& GRL-MA., 7373/2015 SHAILENDRA ROY Petitioner Through:. •• Ms. SimAO^ati with ^ - GuiatJiML.'Shailesh Poddar & Mr. ;Sumii Saini, Advocates. , versus ' . . • STATE Respondent Through: Mf. Mtkpsh Kumar, APP. +

CRL.M.C. 2072/2015 R.SHANKAR RAMAN Petitioner Through: Ms. Sima Gulati with Mr. Subhash .Gulati,Mte Shailesh Poddar & . I I Mi'. SuiM'PSaini, Advocates. versus STATE Respondent Through: Mr. Mukesh Kumar, APP. ' + CRL.M.C. 2158/2015 & CRL.M.A. 7635/2015 SUDHIR SAHGAL Petitioner Through: Mr. R.K. Handoo with Mr. Sandeep Kapur, Mr. Vivek Suri, Mr. Mayank CrI. M.C. 1873/2015 & connected ' Datta, Mr. Karan Seth & Mi*. Aashneet.Singh, Advocates. versus STATE NCT OF DELHI Respondent Through: Mr. Mukesh Kumar, APP. + CRL.M.C. 2159/2015 & CRL.M.A, 7672/2015 ASHOK KUMAR TYAGI Petitioner Tlirough: -Mr. Sidharth Luthra, Sr. Advocate with Mr. Sandeep Kapur, Mr. Vivek Suri, Mr. Kam Seth, Mr. Mayank ^ Datta;& Mr. Aashneet V/ I Siri^yAdyocates. versus . - STATE NCT OF DELHI . : .....Respondent Through: 'Mr. Milkesh Kumar, APP. ' . "f I + CRLM.C. 2160/201S?&ORL:M.4v7637/2015 SHRIRAM KHATT4K' , Petitioner Through: I ®• Vivek Suri, Mr. Mayank I Datta, Mr. Karan Seth & Mr. Aasimeet Singh, Advocates. ■Versus ■ ■ . ® STATE NOT OF DELHI Respondent , Through: Mr. Mukesh Kumar, APP. CORAM: HON'BLE MR. JUSTICE R.K.GAUBA ■ .1IJP GMENT

¶1The work of development of DLF Capital Green Project at a construction site described as 15, Shivaji Marg, Delhi-110 015 owned CH. M.C. 1873/2015 & connected f. by DLF Universal Limited ("the land owner company") was underway in May, 2014, the contract for said construction work having been entrusted by the said land owner company to M/s. Larsen and Toubro Limited ("the construction contractor company"). On 17.05.2014, at about 3:50 p.m. a worker named Arildt Kumar, engaged as a painter at the level of 18"' floor of Tower No.l4, while applying paint on the face of the exterior wall, fell down to the ground suffering serious injuries that resulted in his death. ' .

¶2The matter was reported, inter alia, to the Station House Officer ^ of Police Station Moti Nagar who registered first information report

(FIR) No.429/2014 and took up the investigation into offences suspected to have been committed, they being punishable under Section 288 (negligent conduct with respect to pulling down or repairing building) and Section 3 04-A (causing death by negligence) of Indian Penal Code, I860-(IPG)-. The investigation into the said FIR resulted, in report under'Sec|ipn''-4.73^ Code of Criminal i , . I 'A • Procedure, 1973 (Cr.P.C.) being submitted to seek prosecution of one Shahzad son of Abdul Gani on the accusations of his complicity in the said offences under Sections 28-8/304-A. IPG for the reasons that he was the supervisor engaged by the sub-contractor Anwar Ahmad, to whom the work in question had. been allocated by the construction contractor company, the death being attributable to acts of commission or omission on his part.

¶3Simultaneous to the aforesaid report to the police and initiation of action by it vis-a-vis the aforementioned cognizable offences, the CrI. M.C. 1873/2015 & connected o o mater was also brought to the notice of the authorities in the office of labour commissioner, Govt. of National CapitaL Temtoiy of Delhi, particularly the Inspector of Building and Construction. . The inquiries made by the said authorities culminated in a criminal complaint (CO No.55Fl/14) being presented in the court of Metropolitan Magistrate on 10.07.2014 by the Inspector of Building and Construction (also Deputy Chief Inspector of Factories), the complaint alleging offence punishable under Section 47 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 ("the'Building and Construction'Workers Act", for short). The Metropolitan Magistrate took ,epgntzahee:-by order dated 10.09.2014 and issued summons on . the. sMd'coMplhint, inter alia, against the petitioners , who have approaphed this court invoking inherent jurisdiction under Section 482 Gr.F..C-. .'by the captioned petitions seeking the proceedings arising out of the. said criminal complaint case to be quashed on the grouiid thd'.vsame isijini the nature of abuse of the process of the court.

¶4It may be mentioned here that the criininal complaint in which summoning order w.as passed which ikjimpugned here, fifteen (15) persons were shown in the fray as accused, they including the land owner company and the construction contractor company, five of the accused persons being associated with the land owner company while eight others connected to the construction contractor company.

¶5Though it was pointed out that in the impugned order dated

10.09.2014 whereby the petitioners have been summoned, by the Crl. M.C. 1873/2015 & connected Metropolitan Magistrate, there is a reference to Section 179 of the Factories Act which was wholly uncalled for, the learned counsel for the petitioners fairly submitted that it having been well-understood by all concerned that the summoning order is for the offence under Section 47 of the Building and Construction Workers Act on account of breach of the rules framed thereunder, they press these petitions for quashing of the said summoning order on merits on the grounds indicated hereafter. • 6. The petitions of the land, owner company (petitioner in O Crl.M.C.2064/2G15),' its Chulrman-Mqhit Gujral (petitioner in Crl.M.C.2067/2015), its Managing.,pijep#,,fRajeev ^ in CrLM.C.2066/2015) and its! Dif&fpbs; vShriram Khattar, Ashok Kumar Tyagi and Sudhir S%g^k|#i|fi^ers in Crl.M.C.2160/2015, .2159/2015 'and 2158/2015 respectiy^jfOlprimarily contend that the constmction contract having4eeh-^entrustd^^ ^ the said other company, the work being carried ohtvund^. the,>u|qfPsion and control of the latter through its sub-contractor,, it having no connection whatsoever with the day-to-day activity, it had no role to play or nexus with any of the acts of commission or' oih&'sioh pn'tiSehasis of which accusations have.been leveled, no case also being made out of vicarious liability under the criminal law.

¶7Neither the construction contractor company nor two of the other accused connected thereto Mr. Daljit Singh and Mr. Harish Vaid — described as Project Director and Manager (Industrial Relations) respectively in-charge of the construction site, have co.me i Crl M.C. 1873/2015 & connected- . Page 7.of 54 up to this court with any plea assailing the order of the Metropolitan Magistrate taking cognizance of the afore-mentioned offence or summoning each of them. Six (6) others, connected to the said construction contractor company, however, are before this court, with similar petitions under Section 482 Cr.P.C. as aforesaid, they being A.M. Naik, Group Executive Chairman (petitioner in Crl.M.C.2069/2015); K. Venlcataramanan, CEO and MD (petitioner in Crl.M.C.2068/2015); M.V. Kotwal, whole-time Director and President (Heavy Engineering) (petitioner in Crl.M.C.2070/2015), S.N. ^ Subrahmanyam, whole-time Director and Senior Executive Vice O .. . ^ President (Infrastructure . ,and .Construction) (petitioner m Crl.M.C. 1873/2015); R. Shankai-Raman;'whole-time Director & CFO (petitioner in Crl.M.C.2072/2015); and'Shailender Rao, whole-time Director and Senior Executive Vice President (Corporate Affairs and Power) (petitioner in Crl.M.C.20717201S). The thrnst of the arguments of'this set of petitioners is tliat #ven their position' in the hierarchy in the construction contractor company, having regard to the measures that had been put in position under their directions, in strict coinpliance of and adherence to the law, :the work in question having O been entrusted to a sub-contractor, their representative being in-charge of the project at site, they cannot be held accountable under the principle of vicarious liability for the penal offence under the special law which has been invoked by the prosecution before the Metropolitan Magistrate, and in which they have been summoned such proceedings being abuse of the law. Crl. M.C. 1873/2015 & connected ^ o

¶8: Tte petitions "have been resisted by the respondent Smte (the rMif of the s3,rn.s C3.SS s-iid brin§ ^ cotnplainant). Since they have arisen onto u ^ orher thev have been heard togethei. During challenge to the same Older, they na the course of hearing, references were made to certa communications that had been exchanged between the. companies (accused) on one hand and the statutory ™ to file clarity, the complainant was an affidavit explaining Its position, VIS a fn davit to the compliance a reply dated 28.09.2018 styled as reply affid supplementary documents was.teought on record by the respon en s jix . . . . The-Building and Constmction Motors Act was brought 0^ I' 1 hook enforced w.e.f. ■ai.03..19&6 with the objective of eflif« A .fr^fbhr Mhrafters^i-.connected tnerew welfare measures and fotyo^ei.yW^f,,.;, incidentalthereto. '■ on '■huMm or other-Construction work" is in The expression ^ouucim^ , cys.;),/' . defined by Section 2(l)(d) tb inean, inter alia, "the construetion .ueration, re,a.s. —e or bc-iion b/ or, P.reisnodispute.a^^— the site in question in the name and style ot Ul.r ■ th course of which the fatal accident occurred, we Project, in the ^ or other comtruotwn work wit " io rlpfmed bv Section 2(i)(,e) to medu . statute. The "building worker is defined by o i ; :Crl. tvI.C. 1873/2015 & connected ■ • ! i ) 1 w "a person who is employed to do any skilled, semiskilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment he expressed or implied, in connection with any building or other construction work". There is no dispute that Ankit Kumar, whose death due to fall on 17.05.2014 has led to the criminal action was engaged as a "building worker" at the project site in question within the meaning of the said expression.

¶11The meaning arid import of three other expressions — "contractor", "employer", and "establishment" being germane to the O issues that have been raised, their defmitipnsj as appearing in clauses

(g), (i) and G) of Section 2^1) of'tH^uilding ,and Construction Workers Act, may be taken note pf as'•uridir:- "(g) "contractor" means a person who undertakes to produce a siven result for .anyiestdblishment, other than a mere supply of goodsKofy^dptiplpij^' m by the employment ofbuildins wdrkersl'dr. who supplies building workers for any work.of ike ektablfsHihent; and includes a sub-contractor; ' • '

(i) "employer", in relation to an establishment, means the owner thereof, anddneludes,- , '

(i) in relation to a building or other construction work carried on by or under the authority of any department of the Government, directly without any contractor, the authority specified in this behalf, or where no authority is specified, the head of the department;

(ii) in relation to a building or other construction work carried on by or on behalf of a local authority or other establishment, directly Crl. M. C. 1873/2015 & connected 10 of 54 i ! I I /> I ,-V. . without lahji . contr'actor, the chief executive: officer oftBahuMthority or establishment;

(Hi) m I relation to'' a building or - other construction work carried on by or thou2h a contractor:-' or by YBe employment of building workers ^ supplied by\ a contractor, the contractor; • , , " I

(j) ''establishment''means any establishment belonging to, or under the control of Government, any body corporate or firm, an indiyidual or association or other body of indiyiduals which; or who, employs buildins workers in any'buildin2 or other construction work; and includes an establishment belongins to a contractor, but O . does not include anfhdpidudl who employs such workers in any building or constrmtion work in relation to his own residence the total epkt of fuch'iconstruction not being more than rupees tm .lakh;-" I I , . ; . ; j- . (emphasis supplied)

¶12It is clear from tilie '4bpte^i0je|^d(l:feiitions that the "contractor" in relation to a building c^^.^^ei^tolS^feGlion work may be a person other than owner of the-sd|3^cj.^tc|i.^y;#Whose instance such work is undertaken. As would be' seen with reference to certain other provisions of the law, thetresponsibility for the safety measures is of the person who falls witbiri-'the description "employer", qua the building worker. It is the "employer" who constitutes the "establishment" which is dutj;)' bound, under the law and the rules framed thereunder, to put in position, the'requisite safety measures.

¶13It would be of advantage to bear in mind the broad scheme of law in force by the Building anS Construction Workers Act. Besides conceiving of certain statutory authorities including advisory or expert / - Crl. M.C. 1873/2015 & connected I . • Page 1! of 54 committees (Chapter II), welfare boards (Chapter V), enforcement officers, (described as Inspecting Staff) (chapter VIII), it mandates compulsory registration of establishments (Chapter III)' as also building workers i|s beneficiaries (Chapter IV). It confers certain role upon authorities in the government, the "appropriate sovernment" as per secuon 2(i)(iii) in relation to such I establishment as "employs building workers either directly or through a contractor" being the I government of the State in which such establishment is situate..

¶14The sixth chapter ("conditions-of service of building workers ") ^ deals with sul^ects such as fixeHhoufe for normal woridng day (Section 28). wages for overtim.e work (Section 29). maintenance of registers and records (Sectb'n JO), .prohibition of employment of certain persons in certain buiMiit,or o|hef construction work (Section 31), dnnking water (Section. 3l), la^in# and urinals (Section 33) ' accommodation (Section 3#c|ch^5(g|afo" 35^^ 36), Canteens, etc. (Sectio5i^3f^i|,

¶15The seventh chapter fsafky and health measures") is what is crucial to the present ca^^,, I, .confers, by,S&tion 40. power on the appropriate government to inak^-rhles & the safety and health of building workers, the rules envisaged whereby do also cover, per sub-Section (2) the following:-

(a) the safe means of access to. and the snfeu, anv I ' liefer rfe .V . . j at various stages when work cannot done from the ground or from any part of a orfrom a ladder or such other means of support: Cil. M.C. 1873/2015 Reconnected • I Page 12 of54 erection, installation, use and maintenance of hoists, lifting apvliances and lifting pear includintr periodical testing and examination and heat treatment where necessary, precautions to be taken while raising or lowering loads, restrictions on carriage of persons and appointment of competent persons on hoists or other lifting I appliances;

(o) the keevins of safety nets, safety sheets and safety belts where the special nature or the circumstances of work render them necessary for the safety of the workers;

(p) the standards to-be complied with regard to scaffolding, ladders and stairs,.^ lifting appliances, ropes, chains and accessories,/ earth - moving equipments and • floating operational equipments; (^) safety policy, that is to ppy, a policy relating to steps to be taken to erasure ffffMpfmy and health of the I building workers, the adminiktratiye arrangements therefor and the matters connected therewith, to be framed by the employers and contractors hr the operations to be carried on in a building or. othericonstruction work: (^) other matter coricemmg iihp\ safety and health of workers working in akf^g0dfy[]^gtfpns being carried on in a building or other consnuetiSn work. " (emphasis supplied) O' 16-This power to make rules specific to the subject of "rules for safety and health of building workers" is to be read with the general provision contained in Section 62 {power to m.ake rules) vested in the appropriate government. Section .41 similarly entrusts the responsibility of framing of model rules for safety measures unto the central government. Crl. M.C. 1873/2015 & connected Page 13 of54 A

¶17There are two specific provisions of the Building and Constiuction Workers Act as spell out "responsibility of the employer" vis-a-vis the statutory command for "safety and health measures " to be put in position. They read thus:- "38. Safety Committee and safety officers.- (1) In every establishment wherein five hundred or more building workers are ordinarily employed, the emvlover ^hnll constitute a Safety Committee consisting ofsuch number of-representatives of the employer and the building workers as may be prescribed by the State Government: ^ Provided that the number of persons representing the kers, shall, in no case, be less than the persons representing the employer.

(2) In every establishment referred to in sub-section (]), the employer shall also aopoirit a safety officer who shall possess such qualifications and perform such duties as may be prescribed. i

¶44Responsibility of employersi-^hi emvlover shall hp. responsible—for providing, ], bbMStant and adequate supervision of any building -of ■othefS:constriir.tinri work in his establishment as to ensure comyliance with the provisions of this Act relating to safety and for taking all practical steps necessaiw to prevent accidents. " w (emphasis supplied)

¶18The above-noted statutory provisions declare unequivocally that it is the "employer" vis-d-vis a building pr other construction project who is responsible for arranging all the prescribed safety measures and for due compliances to be ensured, the same inclusive of a "safetv committee" and a "safety officer". Having regard to the scheme of the statute, a contractor' having undertaken to carry out the construction Crl. M.C. 18"3/2015 & connected Page 14 of54 work for and on behalf of the land owner, and also being the person who employs building workers" in such work, also takes on the responsibility towards safety and health measures from the latter.

¶19For completion of narration,^ it may be added that Section 39 casts a duty on "the employer" to give notice, in the manner prescribed, to the specified authority in the event of. an accident occurring m its establishment, it resulting in death or bodily injury incapacitating a worker for a ceifain period, this for the purpose of inyestigation or inquiry by such authority as may be deemed Q necessary. In the present case, the notice of the accident was concededly given and the inquiry heldriby the concerned statutoiy inspectorate.

¶20The Building and Conshaiotion: S^orkers Act also requires _ prior notice of commencement ofbuiiaing.or construction work to be given, the mandatory information' requis^ for such purposes being indicated in the following provisidnittV-^ fv a as 46 Notice of commencement of building or other construction wort: J s o umu 0) An^mMomLjhag. at least thirty days before the commencement ofany building or other : cansa to be sent to the InsoeoI^TTi^-r^ jurisdiction in the area where the proposed budding or other construction work is to be executed, a written notice containinQ-

(a) the name and situation of the place where the building, or other construction workis proposed to be carried on; Cli. M.C. 1873/2015 & connected Page 15 of54 ri

(b) the name and address of the person who is undertaking the building or other construction work;

(c) ^ the address to which communications relating to the building or other construction work may be sent;

(d) the nature of the work involved and the facilities, including any plant and machinery, provided;

(e)the arrangements for the storage of explosives, if any, to be used in the building or other construction work; (f the number of workers likely to be employed during the various stages of building or other construction work;

(s) Ihe name and desimation of the person who will be in overall charge of the bwil^m^r^dthier construntinvi M,nylr at the site: II

(h) the approximate duration qfkheyvork;

(1) such other matters as may be prescribed.

(2) Where any change occurs:, in :'my of the particulars I turmshed under su^-sdction -pXythe employer shall intimate the change fta i^e:Msp0or within two days of such change. > .

(3) Nothing contained in sti-sectibn (1) shall apply in case of such class of building or other construction work as the appropriate0oyermnent may by notification specify to he emergent works. '- N (emphasis supplied)

¶21The above-quoted provision only re-inforces the conclusion that the responsibility towards due compliances with health and safety measures prescribed by the law and rules framed thereunder is primarily of the "employer", a person engaged as "a contractor" for carrying out the construction work, also vested with the authority to Crl. M.C. 1873/2015 & connected , d tr r e Page 16 oj 54 o employ building workers-being the "employer". The personideputed as "one m overall charge" is the representative of "the employer", the employer being answerable and accountable for all acts of commission or omission done by such representative "incharge of the project" or those workmg under his control. Pertinent to add, the duty to intimate, in advance, commencement of the construction work (by prescribed notice) is not of tlie land owner but of the "employer", such statutoiy notice requiring it to be specified, amongst others, the particulars of the person who would be accountable in the capacity of he being "in overall charge".

¶22In exercise of the powers-c©iifti|||vupon the - said authority in exercise of the powers conferred bptliuilding and Construction Woikers Act, the lieutenant gpyernOir pf'jhe Govt. of NOT of Delhi made and notified Rules wHifaf^areSealifed the Delhi Building and Other Construction WoritmV:(feeg;,^^ Employment and Conditions of Service) Rul4a01g Rules for short).

¶23The criminal complaint (from which the present proceedings aiise) refers specifically.tp; breach o^_^ (Health and safety policy), rule 42 (Slipping, .tfippbg, Itiirig, drowning and falling hazards), rule 178 (Safety belt and its use), mle 179 (Safety net and its use), riUe 196 (Guardrails) and rule 209 (Safety officer) of the Delhi Rules. All these Rules fall in different Chapters of third part (Safety and Health). .

¶24Rules 39 and 42 appear in the sixth chapter (general provisions), rules 178 and 179 in sixteenth chapter (Catch Platform and Hoardings, f^-C. ]873/2015 & connected . J Chutes, Safety Belts and Nets), rule 196 included in nineteenth chapter (Scaffold), while rule 209 forms part of the provisions of twenty-first chapter (Safety Organization).

¶25The offence to answer which the petitioners, and three others, have been summoned by the Metropolitan Magistrate is defined and provided for m Section 47 of the Building and Construction Workers Act as under:- "47. Penalty for contravention of provisions regarding safety! measures.- (1) Whoever contravenes the provisions of any rules made under section 40 shall be punishable with imprisonment for a terrn which may extend to three months, or with fine which may extend to two thousand rupees, or with both, and in-tfikiCase of a contifiidng contravention, with art afijdM&nMfi^ may extend to one hundred rupees fon every).-day during which such contravention continues fifterfipiffiction for the first such contravention.

(2) If any person who hqk besfif^rwieted of any offence punishable under again guilty of an offence involving a controfiemM-arfhilure of com.pliance of the same. provision, he shall be punishable on . a subsequent convicfion with imprisonment for a term which may extend to six rnmdyis, or-wmfjfme-which shall not.be less than five hundred rupees but which may extend to two thousand rupees or withboth: Provided that for -the purposes of this sub-section, no cognizance shall be taken of any conviction made more than two years before the commission of the offence for which tne person is subsequently! being convicted^ Providedfurther that the authority imposing the penalty, if it is satisfied that there are exceptional circumstances Cri M.C. 1873/2015 & connected ' Pn iq Page 18 of54 © warranting such a course may, after recording its reasons in writing, impose a fine of less than five hundred rupees. "

¶26It is the contravention of the rules relating to health or safety measures which constitutes the offence provided by Section 47 quoted above, and for this, mens rea i.e. the intention to commit the breach of the rules or abetment thereof on the part of the person sought to be prosecuted is pre-requisite. The case at hand is not one of any of the accused having been previously convicted for such offence and, therefore, the enhanced punishment is not attracted. Having regard to the punishment prescribed, the criminal case comes up before the court of Metropolitan Magistrate as one v/hich may be tried summarily.

¶27As observed above, it is the contravention of the provisions of the Rules on the subject of safety and.'health of building workers", as envisaged in Section 40, which is madq/puhfshable. Though the Delhi Rules have been framed and nptified'With reference to the rule making power.conferred on the appropiafeJdvemihent by section 62, having iegaid. to the subjects that are tliereb}' covered, there can be no dispute that such lules have been framed also in exercise of the power under section 40.

¶28The complainant presses the criminal prosecution against the petitioners primarily on the principle of vicarious liability and, for. this, the provision contained in Section 53 of the Building and Construction Workers Act is emcial. It reads thus:- Crl. M.C. .1873/2015 & connected • d3. Offences by companies.- (1) Where an offence under mis-Act has been committed by a company, every person who, at the time the offence was committed, wns in charge of, and was responsible to. the company for the conduct nf the business of the company, as well as the company, shall I ^deemed to be ^uilty_ of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if. he proves that .the offence M>as committed without hi. . ' 'mowledge or that he had exercised all due dili^ennp to pi event the commission of such offence. ^^^^^^^^^^^^din2 anp\:thin2 conta.ined in suh-section /I) C) tkis-fAetkds been committed by a company and^ it, is proved. -fhaM'^Sic offence has hepr, committed with the coT^mfSfrhonnivance nf ny i. attributable to any nedleet ohlith.k part of a.m> dir^rtny nmnager, secretary or other officer of the company, such director, manager, secretary Sr. other officer shall be deemed to be guilty of that offence qnd shall be liable to be pi oceeded. against cindfifinfskeffaecjdrdingly. ^^l^-ation.-For thepuTposefff^

(a) "company" means any body corporate and includes a Jinn or other association of individuals; and

(b) director", in relatwrnp-^rt^^jfiems aparmer in the ^ /zm, • I . II (emphasis supplied)

¶29As was highlighted during the course of hearing, not only by the learned counsel representing the petitioners, but also by the counsel foi the State (the complainant), tire afore-quoted provision of Section 53 IS almost identical with similar provisions concerning vicarious Crl. M.C. 1873/2015 & connected ' ly(o liability contained in other criminal laws to the effect of which some detailed reference shall need to be made later.

¶30It is clear from the bare reading of the statutoiy clause that where the offence is committed by a company, in order to rope in any other person on the principle of vicarious criminal liability, it must be shown that such person was "m-charge of and was responsible to the company " for the conduct of its business "at the time the offence was commttted". The proviso to Section 53(1) permits a person arraigned on the principle of vicarious liability to plead and show by evidence, m defence, that he was not; responsible either because the acts I constituting the offence were cominitted: -'Wtfcsf his knowledge » or because he had "exercised alt:dUe dtUge^e to prevent the commission of such offence". Notwithsfapding thp main provision contained in Section 53(1), the prosecution ttp b|ini|lated against "any Director, Manager, Secretary or othed-q^fi^tftgcbm^ if there is proof available to show that the dfene^Siy^.bdrlipked "with the consent or connivance of. or is attributable to dfif neglect on the part of" such director, manager, secretaiy or other officer.of the company. While 0, I 53(1) relies on duetto'the position of the person vis-a-vts the company "in-charge of and "responsible to", section 53(2) necessarily requires positive evidende to show active participation reflective of "consent", "connivance " or "neglect":

¶31In the criminal complaint on which the impugned order of summoning has been passed, there is reference to similar fatal accidents having occurred previously at the project site in question on Crl M.C. 1873/2015 tSc connected n o • r Page 21 of54 1-o o

04.09.2011, 11.04.2012, 16.08.2012, 28.02.2013, and 16.01.2014 as well. The present complaint dated 14.08.2014 cannot be treated as a complaint with reference to such previous incidents for two prime reasons; one, there are no averments as to the breach of any specific rules within the meaning of section 47 vis-a-vis the previous incidents, and, second, the criminal action vis-a-vis such earlier incidents would be barred by limitation as provided in Section 55 of the Building and Construction Workers Act.

¶32It is the admitted case of the complainant that the building construction work in the course of which the fatal accident occurred on 17.05.2014 had been entrusted by the land owner company, through a formal contract to thO construetlpn contractor company. It is indicated in the complaint ntself that the construction contractor company had got itself registered with the statutory authority of the appropriate government in eompliancp^' with the requirements of Section 7. The certificate of registration.'describes the construction contractor company to be thb "establishment" for purposes of construction of "DLF Capital Greens Project" by it, it being a project of "residential building", the work ", to be carried out during

02.01.2012 to 17.11.2014, its representative Mr. Surinder Mohan being the "employer" in-charge of the construction work at site. It is I an undisputed case here that the construction contractor company had given the intimation about the commencement of the work in compliance with section 46. It is also admitted that the intimation Crl. M.C. 1873/2015 cfe connected about the fatal accident was given by the construction contractor company abiding by its responsibility under Section 39.

¶33After setting out the facts pertaining to the fatal accident on

07.05.2014, while referring to the previous such incidents, and describing the positions of the petitioners (as indeed of three others who are not before this court) vis-a-vis the two companies, the complainant has narrated its case in the complaint in the following manner:-

¶3That Sh. Mohit .Gujral, Chairman, Sh. Rajeev Talwar, Managing Director, Sh. Sriram. Khattar, Director, Sh. Ashok Kuamr Tyagi, Director, Sh. Sudhir Sahgal, . Director of M/s. DLF Universal Ltd., Shopping Mall, 3'"'' Floor, Arjun Marg, DLF City,, mock E, DLF Phase 1, Sector 26A, Gurgaon, Haryana 122002 are the , Directors and Sh, A.M. 'Naik, Group Executive Chairman, Sh. K. Venkatammdmn, CEO MD, Sh. M. V. Kotwal, Whole time Dimctor, &,:P0^ Heavy Engg, Sh. S.N. Subrahm.anyan, fffiole UTpp. Director & Sr. EVP (infrastructure & cdpstrHplieti)', ^Sjvr'R. Shankar Raman, Whole time Director ^ 'CFOfM SEailendra Roy, Whole time Director & Sr. EVP (Corporate affairs & power) and Sh. Daljit Singh - Project Director, (In-charge of the construction site) of M/s. Lars en- & Touhro Ltd. are the 'Directors" Of M/s. Larsen & Toubro Ltd. and Sh. Harish Vaid, Manager (Indl. Relations) is the Manager of the construction site within the meaning of Section 53 of the said Act (hereinafter called the accused jbr the purpose of the .Act, in the present case).

¶4That on dated 17.05.14, at about 3.50 PM, an accident reportedly occurred at the construction site namely "Capital Green Projects" located at 15 Shivaji Marg Delhi-15 at tower no. 14 having 21 floors. Upon inspection of the 'Construction Site' on 18.5.2014 at 11.00 Crl. M.C. 187S/2015 & connscled , . Rage 23 of 54 AM and further investigation on 24.5.14 at 4.00 PM along with Sh. R.N. • Dahiya, Director (ISH) and Sh. J.N.Jain, Dy. Director (ISH)/Inspectors of Building & Constructim, it was revealed that a worker namely Ankit Kumar, Painter, was working in tower No. 14 on the eighteenth floor and was reportedly engaged in the work of applying paint on the face of the wall, fell to the ground, causing him severe injuries resulting in death.

¶5That besides this, prirna facie, it appeared on inspections that the management failed to en.'jnrp adequate site management as emisa^eA in the provisions of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) ^ Act, 1996 and the Delhi Building and other Construction ^ Workers (Regulation of Employment and Conditions of Service) Rules, 2002. Manasement had not taken all appropriate megsm:es__qs per tHe said Act and Rules framed thereunder to prevent accidents at building site of such proportion and magnitude,

¶6That there have been f fatal .accidents refniltbig into loss of lives of 5 workers in. the rpEent past, at the same-site. But, it is clear that thev had not learnt any lessons out^ of previous series' of Jdtal accidents. Apart from notices, a prohibitory order wm nhp issued to. them to stop jtne constructipn^wprk of entire site till complete/full compliances of all the safet\! provisions as mentioned in ^ the said Act and Rules frames thereupder as applicable on ihe construction site of this magnitude were made.

¶7That further, repeated deaths clearlv pointed to neglect and comm-issions & omissions and lack of due diligence towards all aspects of human lives, safety and welfare at their site as envisaged in the said Act and Rules framed thereunder.

¶8That during the course of inspection, and investigation, the followins breach of the provisions of the I —i^qid Ruleti read witn the said Act " were obseiwedi-Crl. M.C. 1873/2015 & connected I Paze'>4of54 o I. That the workers working at height M>ere not provided with safety belts and Personal Fall Arrest Systems (PFAS). in contravention of provisions of "Rule 42 and 178 of the said Rules. " II. That the safety nets were not provided at the construction site where the workers were allowed to work at height, in contravention of provisions of Rules 42 and 179 of the said Rules. III. That the platforms and balconies, from where a worker is liable to fell, had not been provided with suitable & safe guardrails and toeboards of adequate strensth, in contravention of the provisions of Rule 196 of the said Rules. IV. That more than ,500; I.e. 2700 workers were ordinarily employed at the construction site but Safety Officers as per qualification and condition of service , as laid down in Schedule VIII of the said Rides had not been appointed, in contravention:-of thp .provisions of Rule 209 of the said Rules read with Section B8 of the said Act. V. That the managOmehtsyhavMnot implemented their Health & Safety;I^oUey I nn f eeder and spirit, in contravention cfRMli'^9;(Sffh^

¶9That the above accused persons are thus suilty of contravening the. provisions of Rules 39.42.178.179.196 and 209 of the saidvRuiesiread with Sections 38,40 and. 53 O of the said Act which is funishable imder section 47 of the "Said Act" for an. imprisonment for a term which may extent to 03 months or with a fine which may extend to Two Tlwusand Rupees or with both. " (emphasis supplied) .34. The reference to the prohibitory order having been issued by the statutory authority on 26.05.2014 vis-a-vis the project site, being a Oi. M.C. 1873/2015 & connected subsequent action, there is no case of any violation of the said prohibitory order.

¶35In the complaint, aside from certain other documents, reference was made to inspection form/reports dated 18.05.2014 and

24.05.2014, show cause notices dated 26.05.2014 and 04.07.2014, reply dated 18.06.2014 of the land owner company and replies dated

04.06.2014, 17.06.2014 and 04.08.2014 of the construction contractor company. The reply dated 17.06.2014 of the construction contractor company, in turn, referred to letters dated 20.05.2014, 03.06.2014, and ^

25.04.2013 and health and safety ppliby,-as communicated vide letter dated 25.04.2013. As mentioned.earlier, pursuant to the directions issued, by order dated 24.09.2018, the' complainant has filed the counter-reply dated 28.09.2018. In this'reply, the exchange of the abovesaid correspondence, reliance; whereupon is made by the petitioners, has been acknowtedgied.' ; •'

¶36The documents in whidh-Te^ri^ere is no dispute, upon perusal, show that the land owner company had entered into a .contract • on 29.03.2012 with . the construction contractor company. Concededly, the general conditions of the said contract, as form part of its third annexure, clearly reveal that the construction contractor company had taken over the entire responsibility for every aspect of constmction including safety compliances, liability towards insurance and labour laws. The following stipulations in the contract need to be extracted for confirmation of the above aspect:- "79.0 SAFETY PROCEDURE Crl. M.C. 1873/2015 & connected o

79.1 The contractor shall incorporate in his operations the requirements of all the 'Safety Codes' issued by the Bureau of Indian Standards and provisions of the National Building Code of India 2005 including any amendments thereof The Building and Other Construction Workers (Regidation of Employment and Conditions of Services) Act, 1996 and any other applicable statutory rules and. regulations. These requirements shall apply in all cases except where the regulations of the local authority require more stringent measures to be taken. Where the requirements ofBIS Codes and/or National Building Code, the Building and Other Construction Workers (Regulations of Employment and Conditions of Services) Act, 1996 are duplicated by the local regulations or the "Safety Manual" provided by the Owner,- . the I more stringent of these regulations shall be deemed io, apply: The Safety Manual provided by the Owner: is' bnlyij0^estive and shall not cast any liability on the^^rektf-' f -.

79.2 The contractor shaR prbvidetsafe means, of access to all working places. .■ '

79.3 The contractor-. AIMI -MfsAleh responsible for proper desisn of the KsdUMldm^^^ accesses, ladders and ramyslform^fomxandi-m arransements, cranes etc. to ensure'safetf 'W:w:brkmen as well as the works. All scaffolds, ladders and other safety devices shall be maintained in safe conditions. Only tubular scaffolding . shall be used.

79.4 All necessary personal safety/protective equipment, first aid kit, medically trained personal fully equipped ambulance and any other facilities as per the. statutory requirements should be always available on the site for use. The contractor shall take adequate steps to ensure proper maintenance and use of equipment by his employees/staff/personnel and workers. '

79.5 Adequate precautions shall be taken to prevent danger from electrical equipment. Crl. M.C. 1873/2015 & connected Page'27 of 54 va-

79.6-No materials on the site of work shall he so stacked-or placed as to cause danger or. inconvenience to any person or the public.

79.7 The contractor shall provide and maintain all necessary temporary fire protection and fire fighting facilities at the site during the execution of the works in accordance with the National Building Code of India 2005 and the statutory regulations. The contractor shall ensure that all gases, fuel and other dangerous and. explosive materials and goods are stored and handled in a safe tnanner and in accordance with the statutory regulations. The contractor shall notify the ennneer immedia.telv of any occurrence of mishaps or accidents that results in O , death or iniurv (including grievous injury) as defined in the Indian Penal Code. Such initial notifi-cation may be verbal and confirmed in writing thereafter and shall be followed by a comprehensive written-report within 24 hrs of the occurrence/incident.^ fhei Contractor I shall duly complete standard fdrins', as.: req.iiifdd by the engineer and I statutory authorities. ■/../ !/ It is made clfdh: ftMi:.ih§/)ddndractor alone as the Principal Einploveri: ds fcpas^erdl^ liable to all investieatin^ and leg^g/MBfifief^ Court of Law and the Owner shall not have any part or liabilitv in this regard. The Contractor alone shall be responsible and liable . to compensate the victims. Immediately on the occurrence of the mishaps or accidents and also protect and indemnify and hold harmless the owner, the engineer. and all persons who may be associated with or connected with the owner or the engineer and to reimburse all legal and financial costs, if incurred, by the them in this regard.

19.10 All consequences, damages or losses arising bv reason of any violation of the safety recfuirements residtin^ in any iniuiy or loss; of life to the contactor's or any sub contractor 's Emplovees/Staff/personnel and Workers/Third Party (non-fatal/fatal) shall be met bv the contractor who Crl. M.C. 1873/2015 & connected Page 28 of54 alone will he responsible for handling: and disposal of the accidental cases with Government/non-Government authorities. The Contractor shall be bound to pay compensation to the persons for the injuries sustained or death owing to neglect of the safety precautions should any claim proceedings be filed against the owner/engineer. The contractor hereby agrees to indemnify the owner and the engineer against all liabilities and keep the owner, his employees, personnel, agents, representatives and anyone connected with the owner, protected from civil and criminal prosecution in such cases and be answerable for the same before all authorities.

79.11 Within one week of commencement date, the ^ contractor shall submit-to the engineer, a detailed and O comprehensive contract shall submit to the eriffineer. a detailed and comprehensive contract specific site safety plan, based on the requirements .stated in clause 79.1 above. The site safety plan shall include detailed policies, procedures and regulations mhick -when implemented will ensure safety of all the persons, including third parties on or in the vicinity of the site (including without limitation persons to whom access lo tkemtpMds been allowed by the contractor). The coMractor\:khMh from time to time as necessary, produce SMpplekkefikdolMte^site safety plan such that it is at all times' 'd''defafled, comprehensive and contemporaneous statement by the contractor of his site safety and industrieil health, obligations, responsibilities, policies and procedure (undpr the/laws of India) or as stated in the contract or elsewhere relating to work on site.

79.12 Any omission, inconsistency or error in the site safety plan or the Enfineer's concurrence or rejection of the Site Safety Plan and/or supplements thereto shall be without prejudice to the-Contractor's obligations with respect to Site safety and industrial health and shall not excuse any failure by the contractor to adopt proper and recognized safety practices throughout the execution of works. Cii. M.C. 1873/2015 & connected

9.1:> The contractor ,shall adhere tn Safety Piny, gndjhall ensure that all mb-contractnrs of all tip.r., hn.,. my-Qfthe Site Safety :^n and comply with its; pmvi.^nr,. The^tactor shall amomLamalified and expp.ri^y,na>^ to act nrMny,ncr.. -^thrSUr mety^lan and who win_be. resyonsible for nil matters_related to the works. The nnyitmctor shall mejojun^rovide such other pe.r.^^nmn^.l and rp..<^nvrna. ^Jnm^equiredto ensure effectivp. n^PTntjon pfthp. SaTet^Plm. The said Site Safety Officer shall submit regular safety reports to the Engineer in accordance with the requirements of the Engineer and all relevant statutoiy authorities, . as required by Applicable laws and regulations. The contractor shall submit on a monthly Q basis a Certificate of Compliance for Health, Safety and Environment as given in Appendix;:"MS. " ■, . I;-.. (emphasis supplied) ,

¶37It appears that in

28.02.2013 (death of Maqbool);at the,sine veiy site, prohibitory order followed by revocation order had heepcissued on 01.03.2013 and , 08.03.2013. Against the company had taken steps fbr;|&iii|3id:adfety audit of the project done. An audit report dated 03.04.2013 was submitted to the ^ authorities by the said company mderfiate; cover of its letter dated v.- , 25.04.2013. Reference to the said audit report and the correspondence exchanged in such regard was made by tlie construction contractor company in its letter dated 17.06.2014. which is part of the material that was submitted with the ■ criminar complaint leading to the impugned order being passed. In the reply affidavit dated 28.09.2018, the complainant also confirms that National Safety Council (NSC) which had conducted the said safety audit had given a satisfactoiy cr/. M.C. 1873/2015 & connected Page 30 of54 report m respect of the safety measures that had been adopted by the management of the said company and, in view of such audit report, the constiuction work was allowed to be resumed,

¶38As noted earlier, it is admitted case even for the complainant that in terms of the intimations that had been given, Mr. Daljeet Singh, the Project Director of the construction contractor company, was the person "mcharge of the construction site" and Mr. Harish Vaid, Manager (Internal relations) was the Manager of the Construction Site, within the meaning of Section 53 of the Building and Construction ^ Workers Act. As also noted earlier, both the said accused persons have not challenged the summoning order; I * Ar . 39. It was also brought outiaiii'mg tiie'^ourse of hearing that at the time of inspection(s), leading'tfc mspfeatigh reports dated 18.05.2014,

24.05.2014 being.prepared, Singh, who was found as the person mcharge of t^ sitsAji^^iiBsisted the complainant's officers in such .inspection atileilinteiSiSThe report, prepared inspection carried out in the forenoon of 18.05.2014, is the most crucial inspection report, for purposes, of the., case arising out of the incident that occurred in the dftemoon of 17.05.2014; It concededly noted, vz6'-a-vA the requirements of Rules 142, 178 and 179 that Personal Fall Ainest System (PFAS) and safety belts had been aiTanged but not provided to the workers. It also noted that common safety system had not been provided "at various places", though not specifying the locations where there was such deficiency in , due compliance. It confirmed that health and safety policy, as required by Crl. M.C. 1873/20]5 & connected " Rule 39 had been formulated, the breach of the statutoiy rules was noted for the reason such policy had not been submitted for approval. The report, at the same time, confirmed that the inspecting officer had found and verified that safety committee and emergency action plan in terms of Rules 208 and 36 respectively were in position, the breach of Rule 209, however, being inferred for the reason qualifications of the "safety officer" were not shown. In the brief note of the concluding part of this report, it was fiirther observed that the temporary platform from where the worker had fallen did not have the provision of toe board or guard rail. The inspection report dated 24.05.2014 is in continuation of the report dated 1-8.05'.2:014 and mainly noted that Ankit Kumar (the deceased worker)-was 'applying paint on the face of the wall at the 18"^^ floor level when he had slipped and fallen, to the t ; ground, he not wearing the safety belt'or hFAS at that point of time.

¶40Pursuant to the inquiries which were raised in the wake of the fatal incident of 17.05.2014, the epnstruc.tion contractor company had admittedly sent various letters ihcluding letters dated 20.05.2014 and

03.06.2014 followed by another dated 17.06.2014, the last referring to the previous corresponderice, .which cohcededly includes submission by the constmction-contractor company and yet another safety audit report obtained from National Safety Council, Delhi Chapter, such audit having been undertaken on 24^*^ and 25"^ May, 2014. It was submitted by the construction contractor company that it was in full compliance with the statutorily prescribed health and safety measures, this having been confirmed by the safety audit report of May, 2014, Crl. M.C. 1873/20]5 & connected the safety policy having been formulated and forwarded' to the authorities by letter dated 25.04.2014, duly qualified duty safety officers having been deployed at site, the steps taken inclusive of the following:- "2. On site safety measures : a). L&T has deployed (3) Safety Managers, (5) Safety Engineers (12) Safety Supervisors and (30) Safety Stewards at site to control and monitor the safety measures. b). L&T has provided personal protective Equipment to all workerts and Us-usage is enforced prior to construction site entry.. c). The workers Mre -. 'hrikfed about the hazards involved in particular activity before start of the shift. ; . d). L&T has protected the'floor edge with hard barricades. I : " ■; • ,■2' e). L&T haLpr'otected all'Openings, cut oiits with reinforcement mat. - '-i'' ' .p. f). L&T has closed all lift shafts with gates. g). Safety patchr.netS M^^^^ below 6 m of (^, live working fl-oof dfbund'periphery to prevent fall of materials and men. h). All plants and machineries are fitted with safety device and are frequently inspected and tested for safety compliance.

i). All electrical connections are routed through RCCB, MCB and at source through ELR to avoid any electrocution and overload protection.

¶3Medical and other facilities : Crl. M.C. 1873/2015 & connected . a). Round the clock ambulance and first aid facilities provided at site. b). Well maintained canteen at site and workers habitat area. c). Continuous water facilities for drinking and sanitation facilities. d). Mobile toilets at various places at site and permanent sanitation facilities in workers habitat area. Apart from the above, all the'safety and welfare aspects of the workers are duly taken care of at the work site. That L&T had got the Safety Audit conducted by National ^ / Safety Council, Delhi Chapter in the year 2013. The Audit Team after doing^ extensive':survey / checking at site, submitted its report Tha. relevant excerpts of the reports are as under • a). M/s. D&T' liad ph^yided adequate no. of Safety Officers ta deafmith the requirements of safety mcmagen^hfimjUff^^ There is proper work distributfjn Safety Officers to prevent clash iiri''efhphSibiih^,!,' b). The owner had cippomied expert consultant organization M/s. Turner, who has appointed NEBSOH qualified Safety Officers. c) work at Height permit: In Indian Construction majority of fatalities occurs due to fall of workers from height. Due to this high probability, it had become necessary to ensure implem.entation of Height Work Permit. Under the permit only those workers are allowed to proceed or work at height for whom safe access — like ladders are provided and safe work place like scaffolds exists there. This system is provided by L&T as shown to the Auditors. Crl. M.C. 1873/2015. di conmc.ted d) Personal Protective Equipments ® The use of safety helmet hy all the construction workers was almost 100%. © The use of safety belts by those who were . worldng on external side and have potential hazard of fall, was more than 98%, as one worker was found working without anchoring it with rigid support. e Use of safety shoe was observed almost 100%). e) Lifting Equipment and Tackles M/s L &T had got numerous lifting equipments and Q tackles. The safe use. of one lifiing equipment was checked. It was found that the operator was didy trained and the operator and the signaler were understanding, the signals veiy well. , ' I f

Hazards cf World.h:g>atfIeight L&T had taken the following inecisures to prevent fall of workers from height:' t ; >. yfy ® All the openings -^y^eif^fyations were found covered with bdr 'nM%i.U''% ® All the floor edges were suitably fenced with appropriate hand rails: 9 The stairs were cleaned for-prevention of slipping due to slippery floor. That in view of the observations of National Safety Council (Delhi Chapter) in its report after conducting extensive checks/surveys on site, it can be safely inferred that the Establishment has been complying with all the safety norms as required under the law including BOCW (RE&CS) Act. Any mishap at site despite best protective measures could be an accident only with no human fault or error. L& T has done its best to comply with all the Crl. M.C. 1873/2015 & connected of 54 o safety norms, which have been subject matter of surprise checks and the same have been found to be in order. Without prejudice to what is stated above, it is submitted that L & T had also got another Safety Audit Report done during 24-25'^ May, 2014 by the National Safety Council Delhi Chapter and nothing adverse has been reported in the Audit Report submitted. Copy of the Safety Audit report and the relevant photographs of the site are annexed as Annexure A (colly). Further, the establishment has got its audit done from DGFASLI and the report is awaited and the same shall be submitted as and when it is received.

¶41The questions relating to corporate liability and vicarious criminal liability of those connected to a cor]:)orate body have come up m the past before the courts' in the context of'similar provisions contained in various statutes including,.Section 141. of the Negotiable Instruments Act, 1881 (for short, '''Negotiable Instruments Act"); Section 34 of Drugs and Cosmetics Act, 1940 (for short, "Drugs Act"); Section 17(1) of the Preventioh .ofriodd Adulteration Act, 1954 (foi short, PFA Act"); and Section 33 of the Insecticides Act, 1968 (for short, "Insecticides Act").

¶42On coiporate criminal liability, the following observations of a constitution bench of Supreme Court in Standard Chartered Bank & Ors v^. Directorate of Enforcement & Ors (2005) 4 SCC 530 provide useful guidance:- There is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier authorities to the effect that Crl M.C. 1873/2015 & comecied " covporcitio.ns ccinnot cojnynit ci CTime, I th.6 generally accepted modern rule is that except for such crimes as a corporation is held incapable of committing by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminal process, although the criminal act is committed through its agents. XXX' As in the case of torts, the general rule prevails that the corporation may be criminally liable for the acts of an officer or agent, assumed to be done by him when exercising authorised powers, and without proof that his act was expressly authorised-or approved by the O corporation. In the statutes defining crimes, .the prohibition is frequently directed^-against any "person" who commits the prohibited. aet,fqhdfn many statutes, the term person" is defused. ^Wydri^li the person is not specifically defined, it n'co.cssarity ifteludes a corporation. It is usually construed tfinfiudk. a.; corporation so as to bring it within the prohiUfign statute and subject it to punishment. In the word "person " is defined to include'p-co.rpprdtiofif- ■. xxx Inasmuch as all criminal and quasi-criminal offences are creatures of statute, the amenability of the corporation to prosecution necessarily-depends' upon the terminology / employed in the statute. In the case of strict liability, the terminology employed by the legislature is such as to reveal an intent that guilt shall not be predicated upon the automatic breach, of the statute but on the establishment of the actus reus, subject to the defence of due diligence. The law is primarily based on the terms of the statutes. In the case of absolute liability where the legislature by the clearest intendment establishes an offence where liability arises instantly upon the breach of the statutory prohibition,, no particular state of mind is a Cii. M.C. 1873/2015 & connected \ Page 37 of54 prerequisite to guilt. Corporations and individual persons stand oh the same footing in the face of such a statutory offence. It is a case of automatic primary " responsihilit)). Therefore, as regards corporate criminal liability, there is no doubt that a corporation or company could be prosecuted for any offence punishable under law, whether it is coming under the strict liability or under absolute liability. XXX All penal statutes are to be strictly construed in the sense that the court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has O been a slip that the thing is so clearly within the mischief that it must have been intended tO' be included and would have been included f thought of Mf penal provisions like all other statutes are to he fairly construed according to the legislative intent as .expressed in. the enactment. "

¶43By virtue, inter a//a, of 'the registration, dated 22.02.2012 I I granted to the constructions contractpr 'co.mpany by the respondent under Section 7 of the Building and O'onstmction Workers Act, the complainant was privy to the above-said contractual arrangement vis-a-vis the project in question between the-land owner company and the construction contractor company. O

¶44It is' vivid from bare perusal of the provisions of the Building and Construction Workers Act, as indeed the rules framed thereunder, that the land owner company having chosen to outsource the work of the constructions, had passed oil the responsibility for all compliances to be made by the construction contractor company in terms of the Crl. M.C. 1873/2015 & connected ' law, and the contractual arrangement, to which detailed references have been made above. It is the construction contractor company which was given the responsibility of carrying out the construction work and, for such purpose, engage the workers. Under the law, it is the construction contractor company which, in the present case, is ''the employer'' - the establishment which was to make compliances for safety measures to be put in position. There is no responsibility shown of the land owner company, or anyone connected thereto, this ' having been clearly understood and explicitly so stated even in the ^ contract entered upon by it with-the construction contractor company Qn 29.03.2012. Thus, neither the land owner company nor those in-charge of or responsible to the-cohdupt of its business can be prosecuted for the offence under Section 47 of the Building and Construction Workers Act on the facts set out in the complaint from which the present petitions arise.

¶45The case against the consfructioii e^ractor company and those stated to be in-charge of or responsibie for conduct of its business, however, would stand on a different footing and, thus, need scrutiny separately. I I ' I I 46. In Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and Ors., (1983) 1 see I, while dealing with the applicability ol Section 17(1) of PFA Act, the Supreme Court obseiwed as under;- "15. So far as the Manager is concerned, we are satisfied that from the w'n' ynfm-p, of his duties_U_ca]jj2^Jm(^ inferred that ^^>nnld undoubtedly be^ariously liable fnr the offence; vicarious liability being an incident of an I I Crl. M.C. 1873/2015 & connected • So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from, the presumption drawn by the complainant, thguherejsanv act committed by the Directors from which a rea.,ny,nhlo inference can be drawn that thev r.mdd also bp , yjcariouslv liable In these circumstances, therefore we owr^e/m m complete agreement with the argument of the High Court that no case against the Directors (Accused 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed. (emphasis supplied) O

¶47Following the aforesaid ruling-, in construing the effect of Section 34 of the Drugs Act m a decisionVreported as State ofHaryana vs. Brlj Lai Mittal and Ors., (199S) 5 SCCm, It was held thus:- "S ...the vicarious liability of a person for being prosecuted for an offence committed under the Act by a ' company arises if at the material time he M>as in chnr<rp nf ^4Ami.akpj^^ the company for the condnr.t of Its business. Simply because a person is a director of ^^^^ompany it does not necessarily mean that he fulfils both the above requirements so as to make him liable. Conversely, M^ mLhem^director a person can b^ it. O of and responsible to the cnmpanv for thp. r.mnrtnjnt ^ QUdi.bm^. From the complaint in question we however find that except a bald statement that the respondents were directors of the manufacturers, there is ' no other allegation to indicate, even prima facie, that ey were in charge, of the company and also responsible to the company for the conduct of its business. " (emphasis supplied) Ctl. M.C. 1873/2015 & connected Page 40 of54 o

¶48^ The counsel for tlie petitioners have placed reliance on National Smalllndustries Corpn. Ltd. vs. HarmeetSingh Palntal, (2010) 3 SCC 330 and Pooja Ravinder .Devidasani vs. State of Maharashtra and Anr., (2014)16 SCC 1 both dealing with issues of vicarious liability under the Negotiable Instruments Act. In National Small Industries Corpn. Ltd. (supra), it was observed thus:- iiibiliN^and il' creating vicarious cZoTv JfeZ , PP^AmirnUomoMjuJd cmmXJtatement in a comiolaint that the tv~ZZ. company without anything more as to the role of the D'rector. But Ihe^mdmm should snell am Z 7lZow mdrnwhat rnanner llesp"rA.^t ,1. was in ,.. oTitZbSr^t7- 'Z'^^'^'^otnpcmy for the conduct siness. 2his is ' in f cphsonance with strict interpretation of penal smmh fsoeciolh, v,he.. s^ch statutes create virnriouh:lihhO.iiy.M0'' I 14-f <'°m'a>iy tiay -^ff$..pS,^ *0 make any or all m-DmSSs as accused in a I c^plaint merely on the basis ofa statement that they are 7J ''^P°"^«>le for the conduct of the sZncZ7 ^Hhout 'cmytliing more is not a SXfL ,f ~ (emphasis supplied)

¶49In PooJa Ravinder Devidasani (supra) while observing that "a director of a company is liable to be convicted for an offence committed by the company if he / she was in charge of and Was responsible to the company for the conduct of its business or if it is Cil.M.Ci 1873/2015 & connected L\ proved that the ojfence was-committed with the consent or connivance of, or was attributable to any negligence on the part of the Director concerned" and noting that "zw the entire complaint neither the role of the appellant in the affairs of the company was explained nor in what manner the appellant is responsible for the conduct of business of the company was explained', the prosecution against the appellant for the offence under Section 138 of the Negotiable Instruments Act was quashed.

¶50While examining similar questions vis-a-vis Section 33 of Insecticides Act, in judgment reported as State of NCT of Delhi vs. Rajiv .Khurana, (2010) 11 SCC 469, taldhg note of the law which has developed primarily in the context of'Section 141 of Negotiable Instruments Act, it was held thus:- • "17. The ratio of all these cases is that the complainant is required to state in the complaint how a Director who is sought to be-made an accused, was in charge of the business of the company or responsible for the conduct of the company's business. Every Director need not be and is not in charse of the business of the company. If that is the position with regard to a Director, it is needless to emphasise that in the case of non-Director officers, it is all the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in what manner he is responsible or liable. " (emphasis supplied)

¶51Reliance has also been placed on the decision of the Supreme Court reported as S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla, Crl. M.C. 1873/2015 & connected^ . ,

(2005) 8 see 89; Gunmala Sales vs. Ann Mehta, (2015) 1 See 103 and Standard ehartered Bank vs. State of Maharashtra, (2016) 6 See 62, all cases dealing with issues relating to the effect and import of Section 141'of Negotiable Instruments Act. Taking note of such decisions in Jwala Devi Enterprises P. Ltd. vs. Fadi El Jaouni, 2018 SeeOnline Del 10030 this Court culled out the settled law as under;- "14. The guiding principles with reference'to Section 141 of the Negotiable Instruments Act, 1881, which are . now well settled by judicial pronouncements, some, of which have been noted above, may be summarised ^ thus:— ' • I

(i) It is only those persons who are in charse of or responsible for the conduct of the business of the company at the time of ' commission of the offence under Section 138 of the Negotiable Instrum.ents Act, 1881 who can be subjected to criminal action with reference to Section 141;

(a) If the person committing an offence under Section 138 of the Negotiable Instruments Act, 1881 is a company, the person who was sisnatorv to the cheque which is dishonoured is clearly resvonsible for the ^ incriminating act and would be liable to be proceeded against under Section 141 (2);

(Hi) Bv virtue of the office they hold, the persons workins in the capacily of the Manas:ins Director or Joint Manasins. Director are deemed to be in chars;e of, and responsible for the conduct of the business of. the company and, therefore, can be proceeded against in terms ofSection 141; Cii. M.C. 1873/2015 connected 43 of 54

(iv) Merely because a person is a director of the company is not sufficient to make him liable under Section 141, there heins no deemins that by holding such position he is in I • charge of, or responsible for the conduct of the business of, the company within the meaning ofSection 141;

(y) It is necessary for the complainant to specifically aver in the complaint that at the time the offence was committed, the person sought to be prosecuted was in charge of, or responsible for the conduct of the business of, the company in terms of Section 141, there beins no need for further particidars to be O 2iyen in the complaint about his role, this beins subject to proof at the trial;

(yi) The person who has been summoned as an accused for offence under Section 138 of the Negotiable Instruments Act, 1881 on the basis of ayerment that he was director of the company accused, he being in charge of or responsible for the conduct of its business cannot get the complaint quashed by the High Court by filing a petition under Section 482 of the Code of Criminal Procedure, 1973 merely on the ground that no particidars as to his role have been set out in the complaint; and

(yii) The person who has been summoned as an accused, for offence under Section 138 of the Negotiable Instruments Act, 1881 by-invoking the provision contained in Section-Mi may persuade the High Court to quash the process in exercise of its inherent power under Section 482 of the Code of Criminal Procedure, 1973 by furnishins "some sterling incontrovertible material or acceptable circumstances" substantiating his contention CrI. M.C. 1873/2015 & connected c o that he was not in charge, of nor responsible for the conduct of the business of the company "at the.time the offence was committed" and thereby showing a case that making him stand the trial would be an abuse of the process of I court, but not otherwise. " (emphasis supplied)

¶52Having regard to the statutory scheme and also the stipulations of the contract dated 29.03.2012, there is no escape from the prima facie conclusion that the construction contractor company is not only the principal employer of the workers engaged in the construction project where the fatal accident'took place but was also responsible for arranging all the prescribed salfety measured under the Rules. , Section 47 read with Section 53 of the Building and Construction Workers Act thus creates a coiporate criminahiiabiiity against the said company and I * by virtue of the principles of viearibUk'crirninal liability, every person who, at the time when the was in-charge . of, and was responsible tclijhe^isaidLebh;:^^ for the conduct of its business, as well as the c6mphhy(;'ardfdee^ to be liable to be proceeded against. Just as in the case of Section 141 of Negotiable Instruments Act, by virtue, of the..office they hold, such persons as work in the capacity of a managing director or the joint managing director or, for that matter,' persons employed as in-charge of the construction work at site, be it in a managerial position or in any . supervisory position, are deemed to be in-charge of and responsible for the conduct of the business, to the company. They can, therefore, be proceeded against in terms of Section 53. At the same time, however, merely because a person is a "director" of the company is CrI. M.C. 1873/2015 & connected . ' o not sufficient to attract Section 53, there being no deeming that by holding such position he is rendered to be one who is 'Hn-charge of or '''responsible to the companf for the conduct of its business. As is also well settled in the context of prosecutions under the Negotiable Instruments Act, though it is necessary to specifically aver in the complaint that the person sought to be prosecuted was in-charge of or responsible to the company for the conduct of its business ""at the time the offence was committed\ there is no requirement in law for 'further particulars to be given" in the' complaint about his role, this being subject matter of proof to be adduced at the trial.

¶53In the considered view of this Cop#, the words "for the conduct of the business of the: company''' appealing in Section 53 are most crucial, pregnant with meaning and provide the key to determine whether a person connected to 'the company may be held acc'ountable for the acts of commission or omission'dOhstituting the offence under Section 47 of the Building nnd .Construatijoh'Workers Act. After all, it is the status of being "in-chafge of or being "responsible" for such business of the company that exposes the individual to vicarious criminal liability. If the act of dom'missioh or omission is attributable to the neglect of the person or on account of his "connivance''' or for that matter, with his "consent", sub-section (2) of Section 53 directly attracts the application of penal provision. For the deeming clause contained in sub-section (1) of Section 53 to kick in, there has to be a nexus between the area of responsibility of the person concerned, on one hand, and the act of commission or omission leading to the Crl. M.C. 1873/2015 & connected ' contravention of the rules under Section 40, on the other. To put it more precisely, and clearly, in the context of the offence under Section 47 of Building and Construction Workers Act, the responsibility vis-a-vis the specific rule framed under Section 40 (the breach of which is alleged) has to be shown to.be in existence for a person connected with the business of the company presumed to be 'Hn-charge'' or ''responsible''. There can be no thumb rule that every person "in-charge of " or "responsible to", for the conduct of the business of the company in the general sense of the term would be vicariously,, liable under the criminal law whether-or not he was expected to play any specific role or discharge respo.nsibi# towards a specific rule, at the stage when its breach has led to .the fatahfy 'or serious incident.

¶54A different approach tltatii the, one,v;above to the subject might lead to unjust results. This-illustrated by two simple examples. As noted earier5-fhe;ieifr|l^ {establishment) is duty bound, in terms of Secti6n-'4i(^lJ§); ;tOyiive intimation, prior to commencement of the building^'or :othef'construction work, as to the name and designation of the person who will be "in overall charge of ^ the building or such construction ^Ork; .'ilTaying regard to the scheme of the enactment, and the mules framed thereunder, the employer {establishment) is also responsible to frame a "safety policy (lule 39) and also to appoint and deploy a "safety officer" (rule 209). If the breach relates to default in framing of a written statement of safety policy, or appointment of a duly qualified safety officer, by the establishment, the person appointed as "overall in charge of the Crl. M. C. 1873/2015 & connected o "construction, work at site'' cannot be held accountable. After all, framing of policy, or appointment of safety officers, as required by law, are matters of policy and subject to decision of the persons at superior levels (unless the authority is delegated to the one who is in-charge at site) including those working as managing director. Similarly, if those responsible for framing or taking of policy decisions or making available all requirements in the nature of manpower (safety officers) or safety equipment (safety belts, safety net etc.) have done-their bit and the breach of the rules noted at the level of the supervisory staff at the construction site (i.e. the person in-charge of the constmction work at site, under Section 46 or those assisting him in the task) they hdvinginbl:'ensured the safety equipment to be availed of by the workers,.the forrhef (those responsible for the conduct of the business at the kighCr levels) cann.ot be held accountable under the deeniing provisito^^ ,■

¶55It, is the argumelfty^o;fj;(^lier^b^^ connected to the construction contractor coihphhy vik, ^ A M Naik (Crl.M.C. 2069/2015), K Venkatramanan (Crl.M.C. 2068/2015), M V Kotwal (Crl.M.C 2070/2015), S.N. SftbrallhiaiijrM-'CCrl.M.C. 1873/2015), R Shankar Raman (Crl.M.C. 2072/2015) and Shailendra Roy (Crl.M.C. 2071/2015) that they had discharged their responsibility for due compliances to be made, in letter and spirit, with the provisions of Building and Construction Workers Act and the rules framed thereunder and that the breaches, if any, occurred at the level of the person(s) in-charge' of the construction site i.e. Daljit Singh, Project Crl. M.C. 1873/2015 & connected /1PK C.y' Director and Harish Vaid, Manager (Industrial Relations). It is further their argument that it is not correct tO' accuse them, under the deerning provision of Section 53, of complicity in the offence under Section 47 in the context of the fatal accident of 17.05.2014 also for the reason that the worker in question (Ankit Kumar) had been engaged by a sub-contractor, the representative of such sub-contractor being the person who has been found responsible in the investigation by police in the conresponding case for IPG offences. In this context, they crave reference to the sub-contract in terms of which the deceased worker (Anldt Kumar) had been, deployed, at the 18"\ floor level from where he fell to the ground to suffer indrtjal injuiies. • I

¶56The copy of the sub-Gohtfact, ;a|:shpy/n at the hearing cannot be treated (without proper proof) as . authentic or "incontrovertible materiar or as one exonerating the construction contractor company of its entire responsibility in tfe -madprr in view of its continued responsibility of the sub-contractor as per clause 79.13 of the contracf dated 29.03.2012, referred to earlier. The argument based on the sub-contract, entered upon by the ^ construction contr^actor c01npahy;,With thefimmediate employer, of the deceased worker cannot also be accepted at this stage of the proceedings, particularly in exercise of the power and jurisdiction of this Court under Section 482 • Cr.P.C., inasmuch as it involves questions of fact [Rajiv Thapar and Ors. vs. Madan Lai Kapoor,

(2013) 3 see 330]. , ' I CrL M.C. 1873/2015 & connected o

¶57There is no contest to the submission that the construction contractor company, is a group, of companies comprising of a large number of subsidiaries (130) and associate independent companies

(15), it being structured in a manner that each of its such subsidiaries has its own separate Board of Directors and supervisory persomiel using the nomenclature of Chief Executive Officer (CEO), Chief Financial Officer (CFO) and Human Resources (HR) Head. The subsidiaries and the associate companies have been incorporated to operate in different schemes or spheres including building and factories, civil infrastmcture, metallurgical & material handling, power transmission and distribution, hydrocarbon engineering, valves, alloys, power development, infotech, finalnce, construction and mining machinery etc.

¶58The complaint on which the summoning order was passed itself describes Mr. A.M.-Naik, petitipner. in ,-Cfl.M.C.2069/2015 to be the Group Executive Chairmah .of.'tlie-^cpns^^^ contractor company. Similarly, the description of Mr.'M.V. Rotwal, Mr. R. Shankar Raman and Mr. Shailendra Roy - petitioners in Crl.M.C. Nos. 2070/2015, 2072/2015 and 2071/2015, - even as per/the complainant has been that they were working at the relevant point of time in the capacities of whole-time Director and President (Heavy Engineering), whole-time Director and Chief Financial Officer (CFO), and whole-time Director and Senior Executive Vice President (Corporate Affairs and Power) respectively. By no stretch of reasoning or logic, these four petitioners can be said to be responsible for the compliances to be Crl M.C. 1873/2015 & connected o made with regard to the prescribed safety measures concerning the construction project in question. By virtue of the respective positions each of them held, their responsibilities had no nexus with the subject at hand.

¶59Unlike the above, it cannot be said that the offices held, or the responsibilities shouldered, by Mr. K. Venkataramanan (petitioner in Cii.M.C. 2068/2015) or Mr. S.N. Subrahmanyam (petitioner in CrhMX. 1873/2015) had no connection with the obligations of the establishment of the ''employer" (construction contractor company) towards compliances of the Buiidihg r,andUonstruction Workers Act or the rules framed thereunder. These petitioners do not dispute that at the time of alleged commission of the offdnce under Section 47 of the Building and Construction Workers Act,, ithey were worldng for the construction contractor company; ip tHq capacity of CEO & Managing Director and whole-time ;Executive Vice President • (Infrastructure & Construcd0n)4|s]pd^^i(r

¶60The very description of the port-folios they held and the responsibilities that would entaildherefroni,^prma/acie shows that the allegations in the criminal complaint as to their deemed liability under Section 53 camiot be,said to be unfounded, not the least without trial.

¶61There is merit in the argument of the last two above-mentioned petitioners that given the positions held by them in the company, they could not be expected to remain present at the construction work site to ensure due compliances to be made with rules 42,. 178, 179 oi 196 read with Section 38 of the Building and Construction Workers Act Crl. M.C. 1S73/2015 & connected Page 5! of 54 o Ir-] that concern day-to-day use of safety belts, safety nets, safety P a o^s, or personal fall mrsst systems. But then, it cannot be tgnoied that m (eighth para of) the complaint (extracted earfier). there also allegations of breach on account of non-implementation (« etter and spirit) of health and safety policy in terns of rule 39 and ' ■non-appointment of duly qualified safety officers in breach of the requirements of rule 209 read with Section 38 of the Building and . Constmction Workers Act. These two specific areas cannot; by any stretch of .guments, be relegated to the domain of the managerial (M-. Daljit Singh and hfii. Harish Vaid) made in-charge of the construction site.

¶62The above petitioners, however,'also, raise the defence based on tte two safe^ audit reports, onf dated p3S04.2013 and the other dated ^5.05.2014. It would be aaubject m^er of factual inquiiy as to w ether the safety audit reporf submiftg on 25.04.2014, obtained a ter the fatal accidents in question, can Bi.,treated as one representing •he correct position prevailing' at the time of commission of the offence. Further, it would be the onus of the defence to show that the ^ certification by audit report 03.04.2013 would hold good till date of ■ the fatal accident of 17.05.2014. There are specific allegations in the complaint that as on the said date, i.e., 17.05.2014, duly qualified safety officers were not in position they having not been appointed in teims of the obligation of the construction contractor company under ru e 209 read with Section 38 of the Building and Constniction ceis Act. Smce this area v/ould fall prima facia within the Ctl. M.C. 1873/2015 & connected Page 52 of54 domam of the responsibilities held by petitioners K. Venlcataramanan ™''S-N-Subrahmanyam, they are liable to be proceeded against imder the deeming clause of Section 53. At the trial, they would have the opportunity, in terms of proviso to Section 53(1), to prove that the breaches constituting the offences were committed without their knowledge or that they had exercised all due diligence to prevent commission of such breaches (or offences).

¶63On the above facts, and in the circumstances, initiation of criminal action against petitioners. - DLF Universal Ltd. (petitioner in Q Cil.M.C.2064/2015), Mohit GujralXpetitioner in Crl.M.C.2067/20I5), Rajeev Talwar (petitioner in Crl.MiC.2066/2015), Shriram Khattar (petitioner in Crl.M.C.2160/2015), AsWKumar Tyagi (petitioner in Crl.M.C.2159/2015). I Sudhfr Sahgal ' (petitioner in Crl.M.C.2158/2015), A.M. Ntiik (petitioner in Crl.M.C.2069/2015); M.V. Kotwal (petitioner m,-&lp;G..307:0/2O15), R. Shankar Raman (petitioner in Crl.M.C. 20^fi%).and Sltpendra Roy (petitioner in Crl.M.C.2071/2015) being unfoundddf fhe continuation of such proceedings against them would' be an abuse of the process of law. Therefore, their petitions' are, affewed' 'and. the proceedings against them in the criminal complaint case (CC 55F1/14) pending in the court of the Metropolitan Magistrate are hereby quashed.'

¶64Foi'the reasons set out above, however, there is no case made out for this court to exercise its inherent power and jurisdiction under Section 482 Cr.P.C. to. inhibit the criminal proceedings in the aforementioned case against S.N. Subrahmanyam (petitioner in C'bM.C. 1873/2015 & connected Crl.M.C.1873/20I5) and K. Venkataramanan (petitioner in erl.M.C.2068/2015),. In Hie consequence, the said petitions are hereby dismissed. It must, however, be added that nothing stated above would be treated as final expression of opinion on merits of the case against the said petitioners. 65, The petitions and the appiications filed therewith are disposed of in above terms. (k.K. GA NOVEMBER 19, 2018 . ,' :' '^UDGE vk/nlc/yg J Crl. M.C. 1873/20]5 & connected Page 54 of54

— N- m ■$- m THE HIGH COURT OF DELHI AT NEW DELHI Decided on: 19^'^ November, 2018 NOVEMBER 19,-2018 ' • ^ ' - nk + GRL.M.C. 2070/2015 & CRL.M.A. 7369/2015 M VKOTWAL . ..... Petitioner Through: Mr. Dayankrishnan, Sr. Advocate with Mr. M[ahesh Agarwal, Mr. Aiiuj Malhotra & Mr. Anirudh Bhat, , Adyocates. versus' ' " - STATE&ORS;, : :=i;c, ..-^.Respondents ^ , - W Mh Mukesh Kumar, ape; ; ■CORAM: ~ ^ ^ ^ HON'BLE MR. JUSTICE R.K.GAUBA