Supreme Court of India
SUSHIL ANSALversusSTATE THROUGH CBI
- Citation
- 2014 INSC 168
- Decided
- 5 March 2014
- Disposal
- Case Partly allowed
- Bench
- T S THAKUR
Holding
The occupiers of a cinema owe a high degree of care to patrons, and their gross negligence that prevents rapid dispersal in an emergency is the proximate cause of deaths, making them liable under Section 304A IPC.
Summary
The Uphaar Cinema tragedy in Delhi on 13 June 1997 resulted in 59 deaths and over 100 injuries due to asphyxiation from smoke. The Ansal brothers, as occupiers and licensees of the cinema, were convicted under Sections 304A, 337, 338 read with Section 36 IPC and Section 14 of the Cinematograph Act, 1952. The High Court upheld their conviction but reduced the sentence from two years to one year. The Supreme Court affirmed the conviction, holding that the occupiers' gross negligence—including blocked exits, inadequate gangways, absence of emergency lighting and alarm systems—was the proximate cause (causa causans) of the deaths, not the transformer fire. The Court also altered the convictions of two DVB officials from Section 304A to Sections 337 and 338 read with Section 36 IPC, while upholding their sentences. The question of quantum of sentence for the Ansal brothers and other convicted appellants was referred to a three-Judge Bench due to a difference of opinion between the two judges.
Issues considered
- Whether the concurrent findings of fact prove the commission of a rash or negligent act under Section 304A IPC.
- Whether the High Court was justified in acquitting certain accused persons (N.S. Chopra, A.K. Gera, S.S. Sharma, N.D. Tiwari).
- Whether there is any basis for holding the accused guilty of culpable homicide not amounting to murder under Section 304 Part II IPC, warranting a retrial.
- Whether the sentence awarded to the convicted persons deserves enhancement.
- What relief or general/specific directions need be issued in the matter.
Legislation cited
- Cinematograph Act, 1952s. 10, s. 12, s. 14, s. 16, s. 5A
- Code of Criminal Procedure, 1973s. 216, s. 313, s. 357, s. 464
- Constitution of Indias. 136, s. 21
- Delhi Cinematograph Rules, 1953s. 10, s. 24, s. 37, s. First Schedule
- Delhi Cinematograph Rules, 1981s. 10
- General Clauses Act, 1897s. 6
- Indian Electricity Rules, 1956s. 29
- Indian Penal Code, 1860s. 304, s. 304A, s. 337, s. 338, s. 36, s. 52, s. 79
Subjects
criminal negligenceoccupier's liabilitycausa causansSection 304A IPCcinema safetyfire safetygross negligenceright to speedy trialArticle 136Article 21
Judgment
[2014] 9 S.C.R. 571
SUSHIL ANSAL A
v.
STATE THROUGH CBI
(Criminal Appeal No. 597 of 2010)
MARCH 5, ·2014
B
[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]
Constitution of India, 1950:
Art. 136 - Scope of - The extra ordinary jurisdiction and c
power vested in Supreme Court is not exercised to upset
concurrent findings of fact recorded by the two courts below
on a proper appreciation of evidence but only in those rare
and exceptional cases where the appreciation of evidence is
found to be wholly unsatisfactory causing miscarriage of justice 0
- Similarly, scope of interference by Supreme Court with
quantum of punishment awarded by High Court is limited to
cases where the sentence awarded is manifestly inadequate
and punishment reduced is tantamount to failure of justice -
Constitution of India, 1950 - Art. 21.
E
Penal Code, 1860:
ss. 304-A, 337 and 338 r/w s. 36 and s. 14 of
Cinematograph Act, 1952 - Gross negligence - Uphar
Cinema tragedy in Delhi - Conviction - Sentence of 2 years F
RI, reduced by High Court to 1 year - Conviction upheld
except of Inspector and Fitter of DVB, whose conviction u/s
304A altered to ss.337 and 338 - There being difference of
opinion as to quantum of sentence, matter referred to larger
Bench - Cinematograph Act, 1952 - s. 14.
G
Criminal Law:
'Rash' or 'negligent' - Meaning of - Explained.
571 H
572 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 'Negligence' in regard to use of buildings, particularly,
cinema hall - Liability of occupier(s) - Degree and nature of
care expected of an occupier of a cinema bui81ding -
Explained Cinematograph Act, 1952; Delhi
Cinematograph Rules, 1953) and Delhi Cinematograph
B Rules, 1981 - General Clauses Act, 1897 - s.6.
Doctrine of causa causans - Explained - In the instant
case, causa causans was not the fire, but the breaches
committed by the occupiers of cinema and other accused
persons, which prevented or at least delayed rapid dispersal
c of cinema viewers, and resulted in the tragedy.
Code of Criminal Procedure, 1973:
s.464 - Error, omission or irregularity in framing of
D charge - Shall not invalidate any sentence or order passed
by a court of competent jurisdiction unless in the opinion of
a court of appeal, confirmation or revision a failure of justice
has in fact been occasioned thereby.
Administrative Law:
E
Safety and security of citizens - Enforcement of relevant
laws - Duty of persons/authorities entrusted with enforcement
of such laws - Emphasised.
Administration of criminal justice:
F
Flawed investigations and long winding criminal trial -
Brings the case to an uncertain end - Investigation.
The instant appeals were filed by the convicts
G challenging their conviction and sentence, by the State
challenging the acquittal of four accused and by the
Association of Victims of Uphar Cinema challenging the
acquittal and seeking a retrial of accused persons for
offences punishable u/s 304 (part II) IPC.
H
SUSHIL ANSAL v. STATE THROUGH CBI 573
Disposing of some of the appeals, and referring the A
matter to a 3 Judge Bench in regard to quantum of
sentence in other appeals, the Court
HELD:
Per Thakur, J:
B
(i) Scope of a criminal appeal by special leave:
1.1. The jurisdiction to interfere under Art. 136 of the
Constitution of India is extraordinary and the power c
vested in the Supreme Court is not exercised to upset
concurrent findings of fact recorded by the two courts
below on a proper appreciation of evidence. It is only in
those rare and exceptional cases where the
appreciation of evidence is found to be wholly
D
unsatisfactory or the conclusion drawn from the same
perverse in nature, causing miscarriage of justice that
this Court may correct the course of justice and undo
the wrong. [para 46] [639-B-D]
Mst. Dalbir Kaur v. State of Punjab 1977 (1) SCR 280 = E
(1976) 4 SCC 158; Radha Mohan Singh @ Lal Sahib and
Ors. v. State of U.P. 2006 (1) SCR 519 = (2006) 2 SCC 450;
Raj Narain Singh v. State of U. P. and Ors. 2009
(14) SCR 755 = (2009) 10 SCC 362, Surendra Pal and Ors.
v. State of U.P. and Anr. 2010 (11) SCR 968 = (2010) 9 SCC F
399 Amitava Banerjee v. State of West Bengal (2011) 12
SCC 554 and Mohd. Arif v. State (NCT) of Delhi, 2011
=
(1 O) SCR 56 (2011) 13 sec 621 - relied on.
(ii) 'Rash' or 'negligent' - meaning of:
G
1.2. Section 304A IPC makes any act causing death
by rash or negligent act not amounting to culpable
homicide, punishable with imprisonment which may
extend to two years or with fine or with both. The terms
'rash' or 'negligent' appearing in s.304A, IPC have not H
574 SUPREME COURT REPORTS [2014] 9 S.C.R.
A been defined in the Code. Negligence signifies the
breach of a duty to do something which a reasonably
prudent man would unde'" the circumstances have done
or doing something which when judged from reasonably
prudent standards should not have been done. The
B essence of negligence whether arising from an act of
commission or omission lies in neglect of care towards
a person to whom the defendant or the accused as the
case may be owes a duty of care to prevent damage or
injury to the property or the person of the victim. Unlike
c rashness, where the imputability arises from acting
despite the consciousness, negligence implies acting
without such consciousness, but in circumstances
which show that the actor has not exercised the caution
incumbent upon him. The imputability in the case of
0 negligence arises from the neglect of the civil duty of
circumspection. [para 47-50 and 66] [639-F-G; 640-A-H;
641-A-B; 649-G-H; 650-A}
Empress of India v. /du Beg /LR (1881) 3 All 776 Re:
Nidamarti Negaghushanam 7 Mad HCR 119; Jacob Mathew
E v. State of Punjab and Another 2005 (2) Suppl. SCR 307 =
(2005) 6 SCC 1; and Dabwali Fire Tragedy Victims
Association v. Union of India and Ors., (2001) 1 ILR Punjab
& Haryana 368 - referred to.
F Pa/sgraf v. Long Island Railroad, 248 NY 339; Hartwell
v. Grayson Rollo and Clover Docks Limited and Others
(1947) KB 901; Rosston v. Sullivan, 278 Mass 31 (1932):
Helen Upham v. Chateau De Ville Theatre Inc 380 Mass 350
(1980); Mostert v. CBL & Associates, et. Al., 741 P.2d 1090
G (Wyo. 1987); Brown v. B & F Theatres Ltd., (1947) S.C.R. 486;
Wheat v. E. Lacon & Co. (1966) 1 All ER 582, Thomson v.
Cremin (1953) 2 All ER 1185 and H & N Emanuel Ltd. v.
Greater London Council & Anr. (1971) 2 All ER 835, R. v.
Gurphal Singh [1999] CrimLR 582 - referred to.
H Black's Law Dictionary; Charlesworth and Percy on
SUSHIL ANSAL V. STATE THROUGH CBI 575
Negligence (Twelfth Edition); Clerk & Lindsell on Torts A
(Eighteenth Edition); Law of Torts by Rattan/a/ Dhirajf.a.I;
"A Textbook of Jurisprudence" by George Whitecross Pato.n
- referred to;
(iii) Difference between negligence in civil actions and in
8
criminal cases:
1.3. Conceptually the basis for negligence in civil law
is different from that in criminal law, only in the degree
of negligence required to be proved in a criminal action
than what is required to be proved by the plaintiff in a C
civil action for recovery of damages. For an act of
negligence to be culpable in criminal law, the degree of
such negligence must be higher than what is sufficient
to prove a case of negligence in a civil action. Negligence
can constitute an offence punishable u/s. 304A, IPC only o
if the same is proved to be gross, no matter the word
"gross" has not been used by Parliament in that
provision. [para 67] [650-C-E, q]
R. v. Bateman (1925) 94 L.J.K.B. 79; John Oni Akerele
v. The King AIR 1943 PC 72; R. v. Adomako (1994) 3 All ER E
79 - referred to.
(iv) Doctrine of causa causans:
1.4. The second and an equally, important dimension
of the offence punishable u/s 304-A IPC is that the act of F
the accused must be the proximate, immediate or efficient
cause of the death of the victim without the intervention
of any other person's negligence. For an offence u/s 304
A to be proved it is not only· necessary to establish that
the accused was either rash or grossly negligent but also G
that such rashness or gross negligence was the causa
causans that resulted in the death of the victim. [para 75
and 79] [655-A, B; 656-D-E]
Kurban Hussein Mohamedafli Rangawal/a v. State of H
576 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Maharashtra 1965 SCR 622 =AIR 1965 SC 1616; Suleman
Rahiman Mu/ani v. State of Maharashtra 1968 SCR 515 =AIR
1968 SC 829; Rustom Sherior Irani v. State of Maharashtra
1969 ACJ 70; Ba/chandra @ Bapu and Anr. v. State of
Maharashtra AIR 1968 SC 1319; Kishan Chand v. State of
B Haryana (1970) 3 SCC 904; S.N Hussain v. State of A.P.
(1972) 3 SCC 18; Ambala/ D. Bhatt v. State of Gujarat (1972)
3 sec 525- relied on.
Emperor v. Omkar Rampratap (1902) 4 Born LR 679 -
referred to.
c
Black's Law Dictionary (Fifth Edition); Advance Law
Lexicon - referred to.
1.5. In cases where negligence is alleged in regard
to use of buildings and structures permanent or
D temporary, the duty to care is fixed on the person or
persons who were occupiers of such buildings or
structures. What is important is whether the premises in
question was sufficien~ly and not exclusively under the
control of defendant/ accused, and for being in such
E control, ownership of the premises is not a condition
precedent. If there are more than one occupiers of a
building, and each one neglects the duty to care, the
liability whether civil or criminal will fall on all of them.
[para 82 and 84] [656-D-E; 659-A-B]
F
Wheat v. E. Lacon & Co. (1966) 1 All ER 582, H & N
Emanuel Ltd. v. Greater London Council & Anr. (1971) 2 All
ER 835 - referred to.
(iv) Re:A:>wnership, management and control of Uphaar
G Cinema:
and
(v) Whether A-1 and A-2 were occupiers of Uphaar cinema
building:
H
SUSHIL ANSAL v. STATE THROUGH CBI 577
1.6. In the facts of the case, merely because the A
company was the legal owner of the Cinema premises,
did not mean that the Company and Company alone was
the occupier thereof. The trial court and, so also, the High
Court have both concurrently held that the ownership,
management and control of Uphaar Cinema vested with B
A-1 and A-2 at all material times, and they were
responsible for all major decisions in regard to
management and affairs of the Uphaar Cinema.
Therefore, the finding that A-1 and A-2 were both
occupiers of the cinema complex as on the date of the c
incident in which capacity they owed a·duty to care for
the safety of the patrons visiting/coming to the premises,
is affirmed. [para 86-90] [660-8, 0, E; 662-G-H]
S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla 2005 (3)
Suppl. SCR 371 = (2005) 8 SCC 89, JK Industries and others D
v. Chieflnspector of Factories and Boilers (1996) 6 SCC 685
- held inapplicable.
(vii) Degree and nature of care expected of an occupier
of a cinema building: E
1.7. As regards the degree and nature of care
expected of an occupier of a cinema building, two
fundamental principles must be noticed: The first is that
the degree and nature of care expected of an occupier
depends upon the fact situation in which the duty to care F
arises. The second and equally important principle at
common law is that the degree of care in a given fact
situation would depend upon whether the person to
whom the duty is owed is a contractual visitor, invitee,
licensee or trespasser. Of these the occupier owes the G
highest degree of care to a contractual visitor viz. a
person who pays consideration to be present on the
premises for some purpose; whatever that purpose be.
At common law there is an implied term in the contract
between the occupier and the visitor that the occupier's H
578 SUPREME COURT REPORTS [2014] 9 S.C.R.
A premises shall be reasonably safe. The occupier's duty
must be held to have been breached if any injury is
caused to a contractual visitor by any defect in the
premises apart from a latent defect. In the case of a cinema
hall the nature o'f an occupier's duty to care may, inter
B alia, require him to ensure rapid dispersal from the hall
in the event of any fire or other emergency, and for that
purpose to provide suitable gangways and keep them
clear of any obstruction, to provide proper exits, to keep
the exit signs illuminated, to provide emergency lighting,
c to provide fire fighting systems, alarm systems and to
employ and keep trained personnel on duty whenever an
exhibition of cinematograph is in progress. The obligation
to ensure safety of the invitees is undeniable, and any
neglect of the duty is actionable both as a civil and
0 criminal wrong, depending upon whether the negligence
is simple or gross. [para 92, 101 and 102] [663-G-H; 664-
A-C; 670-G-H]
Mclenan v. Segar (1917) 2 KB 325 - referred to
E Winfield & Jolowicz on Tort (Sixteenth Edition) -
referred to.
1.8. Besides, the occupier must also discharge the
duties cast under statutes enacted by the legislature or
F in Rules and Regulations framed in exercise of powers
delegated under such enactments. A conspectus of the
provisions of the Cinematograph Act, 1952 and the Delhi
Cinematograph Rules shows that the duty to "ensure
safety" of those entering a cinema hall for watching the
exhibition of a film, is cast upon the occupier of the hall.
G In the case of gross negligence, prosecution and
damages may be claimed simultaneously and not
necessarily in the alternative. [para 94, 98 and 103] [665-
G-H; 666-A; 668-C-D; 671-A]
H Bhalchandra Waman Pathe v. State of Maharashtra
SUSHIL ANSAL v. STATE THROUGH CBI 579
1968 Mah. L.J. 423 (SC); Bhalchandra @ Bapu and Anr. v. A
State of Maharashtra, 1968 (3) SCR 766; Municipal Council
of Delhi, Delhi v. Association of Victims for Uphaar Tragedy
and Ors. 2011 (16) SCR 1 = (2011) 14 sec 481- referred to.
Lochgelly Iron & Coal Co. Ltd. v. M'Mullan, (1934) AC 8
1; Queen Empress v. Bhutan /LR XVI All. 472 and Kamr-ud-
din v. King Emperor 1905 PR 22(Cr) Regina v. David Dant,
169 English Reports (C.C.) 1517 and Rex. v. Pittwood
(1902) 19 TLR 37 - referred to.
Clerk & Lindsell on Torts (Twentieth Edition) - referred C
to.
1.9. In the case at hand the installation of a DVB
transformer within the cinema premises had increased
the degree of risk on account of fire hazard which o
resultantly enhanced the degree of care expected of the
occupiers in maintenance of the safety measures for the
safety of those inside the theatre. The High Court has
held that the DVB transformer, which caught fire due to
short circuit, installed in the cinema building premises E
had been installed against the provision of the Electricity
Rules, and it was in poor mainten.ance on the date of the
incident. [para 30 and 113] [679-E-F; 629-G; 630-B]
Lord Macmillan in Read v. J. Lyons & Co. Ltd. [1947] AC
156; Glasgow Corp v. Muir (1943) AC 448 - referred to. F
(viii) Whether the accused were negligent and if so,
whether the negligence was gross: [Para 42] [636-D]
1.10. The Courts below have concurrently found that
the occupiers of the cinema building had committed G
several deviations from the sanctioned building plan
apart from breaches of statutory provisions. Even though
the said deviations did not constitute the causa causans
for the death of the victims in the instant case, two
H
580 SUPREME COURT REPORTS [2014] 9 S.C.R.
A inferences are clearly available from these deviations
namely (i) that the occupiers of the cinema building were
not sensitive towards the demands of safety of the
patrons and amply showed that the safety of the visitors
to the theatre was a matter of low priority for the
B occupiers and (ii) that the deviations raised the level of
risk to the safety of the patrons which in turn required the
occupiers to proportionately raise the level of their vigil
and the degree of care in regard to the safety of those
visiting the cinema. The occupiers committed several
c breaches of their duty to care and were, therefore,
negligent, that directly contributed to the loss of valuable
human lives. [para .115-117] [681-B-C; 682-G-H; 683-A•C]
Kurban Hussein Mohamedalli Rangawalla v. State of
Maharashtra 1965 SCR 622 = AIR 1965 SC 1616; State
D through PS Lodhi Colony, New Delhi v. Sanjeev Nanda 2012
(12) SCR 88.1 = (2012) 8 SCC 450 - referred to.
1.11. As regards the causa causans in the case at
hand, two aspects need be borne in mind. The first is that
E the victims in the instant case did not die of burn injuries.
All of them died because of asphyxiation on account of
prolonged exposure to poisonous gases that filled the
cinema hall including the balcony area. Fire, whatever
may have been its source, whether from the DVB
F transformer or otherwise, was the causa sine qua non for
without fire there would be no smoke possible and but
for smoke in the balcony area there would have been no
casualties. That is not, however, the same thing as saying
that it was the fire or the resultant smoke that was the
G causa causans. It was the inability of the victims to move
out of the smoke filled area that was the direct cause of
their death. If such escape was to be delayed or prevented
the causa causans for death is not the smoke but the
factors that prevent or delay such escape. [para 123] [689-
H D-G]
SUSHIL ANSAL v. STATE THROUGH CBI 581
1.12. On the· facts proved in the instant case, the A
causa causans was not the fire in the transformer but the
breaches committed by the occupiers of the cinema
which prevented or at least delayed rapid dispersal of the
patrons thereby fatally affecting them because of carbon
monoxide laden gas in the smoke filling atmosphere. The B
causa causans indeed was the closure of the exit on the
right side, the closure of the right side gangway, the
failure to provide the required number of exits, failure to
provide emergency alarm system and even emergency
lights or to keep the exit signs illuminated and to provide c
help to the victims when they needed the same most, all
attributable to the two brothers, namely, A-1 and A-2, the
occupiers of the cinema. [para 126] [691-D-G]
Raj Kapoor v. Laxman 1980 (2) SCR 512 = (1980) 2 SCC
175 - referred to. D
1.13.ln order that A-1 and A-2, the occupiers of the
cinema, could claim the benefit of s.79, they were required
to prove that the belief which they harboured about their
act being justified in law was in good faith. The use of E
expression 'good faith' necessarily brings in the question
whether the persons concerned had acted with due care
and caution. If they had not, part (b) of s.79 would have
no application to the case. In the instant case, it cannot
be accepted that the appellant occupiers acted in good F
faith so as to claim protection uls 79 of the IPC. [para 132,
133 and 136] [693-D-E; 697-D]
Russel on Crime; "Law of Crimes" (23rd Edn.) by
Ratanlal and Dhirajla/ Page 199 - referred to.
G
State of Orissa and Ors. v. Titaghur Paper Mills Co. Ltd.
and Anr. 1985 SCR 26 = (1985) Supp SCC 280; Union of
India v. Glaxo India Ltd. and Anr. 2011 (4) SCR 50 = (2011)
6 SCC 668; and lsherdas Sahni & Bros and Anr. v. The Delhi
Administration and Ors. AIR 1980 Delhi 147; Willie (William) H
582 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Slaney v. State of Madhya Pradesh (AIR 1956 SC 116) •
referred to.
Green v. Fibreglass Ltd. 1958 (2) QBD 245, Gee v. The
Metropolitan Railway Company 1873 VIII Q.B. 161 and Grant
8 v. Sun Shipping Co. Ltd. and Anr. 1948 AC 549; Haze/dine
v. C.A. Daw and Son Ltd. and Ors. (1941) 2 KB 343 ·referred
to.
2.1. Section 464 of the Cr.P .C., in no uncertain terms
C provides that an error, omission or irregularity in the
charge including any misjoinder of charges shall not
invalidate any sentence or order passed by a court of
competent jurisdiction unless in the opinion of a court of
appeal, confirmation or revision a failure of justice has in
D facf been occasioned thereby. In the instant case, there
was nothing fundamentally wrong with the charges
framed against the accused-appellants nor have they
been able to demonstrate that they suffered any prejudice
on account of the alleged defects. Therefore, there is no
E reason to interfere with the concurrent judgments and
orders of the courts below in so far as the same have
convicted appellants A-1 and A-2 u/ss 304A, 337, 338 read
with s.36 IPC and s.14 of the Cinematograph Act, 1952.
[para 159,161 and 166] [710-C-E; 712-A-B; 714-C-D]
F
K. C. Mathew v. State of Travancore-Cochin 1955
SCR 1057 =AIR 1956 SC 241, Gurbachan Singh v. State of
Punjab AIR 1957 SC 823, Eirichh Bhuian v. State of Bihar
1963 Suppl. SCR 328 = AIR 1963 SC 1120, State of
Maharashtra v. Ramdas Shrinivas Nayak 1983 (1)
G SCR 8 =AIR 1982 SC 1249, Lal/an Rai v. State of Bihar 2002
(4) Suppl. SCR 188 = (2003) 1 sec 268 and State (NCT of
Delhi) v. Navjot Sandhu 2005 (2) Suppl. SCR 79 = (2005)
11 SCC 600; Jai Dev v. State of Punjab 1963 SCR 489 = AIR
1963 SC 612; Shivaji Sahabrao Bobade v. State of
H Maharashtra 1974 (1) SCR 489 = (1973) 2 SCC 793; State
SUSHIL ANSAL v. STATE THROUGH CBI 583
(Delhi Admn.) v. Dharampa/ 2001 (4) Suppl. SCR 448 = A
(2001) 10 SCC 372 and Bakhshish Singh v. State of Punjab
AIR 1967 SC 752 - referred to.
2.2. As regards the conviction of Divisional Fire
Officer, A-15, the trial court has on a reappraisal of the
8
evidence adduced at the trial found that the said accused
had acted in a grossly rash and negligent manner in
issuing 'No Objection Certificates' without carrying out a
proper inspection of the cinema hall from the fire safety
angle, resulting in issue of temporary permits in favour C
of the theatre which directly resulted in the death of 59
persons in the incident in question. The said finding was
affirmed by the High Court. There is no compelling
reason for this Court to take a different view in the matter
especially when there is no miscarriage of justice or
perversity in the reasoning adopted by the trial court and D
the High Court. [para 167, 168, and 172] [714-D-F; 715-D;
717-F]
2.3. The causa causans for the death of 59 persons
was their inability to quickly exit from the balcony area. E
That being so, even when the repairs carried out by A-
11 and A-9, i.e. the Inspector and Fitter of DVB, may have
been found to be unsatisfactory for the reasons given by
the trial court and the High Court, the fire resulting from
such poor repair was no more than causa sine qua non F
for the deaths and, therefore, did not constitute an
offence punishable u/s 304A, IPC. The conviction of
appellants A-11 and A-9 u/s 304A cannot, therefore, be
sustained. That would, however, not affect their
conviction u/ss. 337 and 338 read with s.36 of the IPC G
which would remain unaffected and, as such affirmed.
The High Court has rightly acquitted A-6 of the charges
u/s 304 (Part II) read with s.36 IPC for reasons that
prosecution glaringly has not proved when these two
accused fled the cinema hall; there is no eyewitness H
584 SUPREME COURT REPORTS [2014] 9 S.C.R.
A testifying to their having been in the balcony when the
smoke entered the hall, and having left it, which could
have proved knowledge of the likely deaths and grievous
bodily injuries. Thus, proof of these appellants, having
committed the offence u/s 304, is not forthcoming. While
B acquitting of A-13 and A-14, Administrative Officers, MCD,
the High Court has taken a fairly reasonable view which
is in tune with the evidence on record. There is no room
for interference even with this part of the order passed
by the High Court. [para 178, 179,181 and 183-185] [721-
C C-E, F; 722-F-G; 724-D; 726-C]
2.4. What emerges from the decided cases is that: (a)
Each case must be decided on its own facts to determine
whether the knowledge that death was likely to be
caused did in fact precede the rash/negligent act. (b) What
D converts a case apparently falling u/s 304A into one u/s
304 (Part II) is the knowledge that the act is likely to cause
death" and (c) Where the act which causes death is the
act of driving a vehicle in a rash and reckless manner and
in an inebriated state after consuming liquor, the accused
E may be attributed the knowledge that such act was likely
to cause death of others using the road. [para 195] [732-
H; 733-A-C]
Alister Anthony Pereira v. State of Maharashtra 2012
=
F (1) SCR 145 (2012) 2 SCC 648; Keshub Mahindra v. State
of M. P. 1996 (6) Suppl. SCR 285 = (1996) 6 SCC 129; State
through PS Lodhi Colony, New Delhi v. Sanjeev Nanda 2012
(12) SCR 881 = (2012) 8 SCC 450; C.B.I. and Ors. etc. v.
Keshub Mahindra etc. 2011 (6) SCR 384 = (2011) 6 SCC
G 216; Shamnsaheb M. Multtani v. State of Kamataka 2001 (1)
SCR 514 = (2001) 2 SCC 577; Sushi/ Ansal v. State Through
CBI etc. etc. 1995 (2002) DLT 623 - referred to.
Town Investments Ltd. v. Department of the Environment
1977 (1) All E.R. 813 - referred to.
H
SUSHIL ANSAL v. STATE THROUGH CBI 585
3.1. The scope of interference by this Court with the A
quantum of punishment awarded by the High Court is
limited to cases where the sentence awarded is
manifestly inadequate and where the Court considers
such reduced punishment to be tantamount to failure of
justice. Award of sentence of one year rigorous B
imprisonment for an offence where maximum sentence
prescribed extends to two years cannot, therefore, be
said to be inadequate to call for interference by this Court
under Art. 136 of the Constitution. Besides, right to
speedy trial has been held to be implicit in Art. 21 of the C
Constitution. Such being the case delay has been often
made a basis for the award of a reduced sentence.
[para 207, 212 and 214) (740-H; 741-A-B; 745-A, B, F]
Sham Sunder v. Pu ran and Anr. 1990 (1) Suppl.
0
SCR 662 = (1990) 4 SCC 731, Deo Narain Manda/ v. State
of Uttar Pradesh (2004) 7 SCC 257, State of U.P. v. Shri
Kishan 2004 (6) Suppl. SCR 530 = (2005) 10 SCC 420 State
of Madhya Pradesh v. Ghanshyam Singh 2003 (3)
Suppl. SCR 618 = (2003) 8 SCC 13 State of M.P. v. E
Sangram and Ors. AIR 2006 SC 48 - referred to.
Hussainara Khatoon and Ors. v. Home Secretary, State
of Bihar, Patna 1979 (3) SCR 169 = (1980) 1 SCC 81;
Balaram Swain v. State of Orissa 1991 Supp (1) SCC 510;
and M.O. Shamsudhin v. State of Kera/a 1995 (2) SCR 900 = F
(1995) 3 SCC 351; A. R. Antu lay v. R. S. Na yak 1991
=
(3) Suppl. SCR 325 (1992) 1 SCC 225; Kantilal Chandu/a/
Mehta v. State of Maharashtra and Anr. 1970 (2) SCR 742 =
(1969) 3 sec 166 - relied on.
G
3.2. Further, appellants A-1 and A-2 did not have any
criminal background and are both senior citizens, whose
Company has already been adjudged liable to pay
compensation to the victims besides punitive damages
awarded against them. Thus, it cannot be said that the
H
586 SUPREME COURT REPORTS [2014] 9 S.C.R.
A punishment awarded to the A-1 and A-2 ought to be
-enhanced. [para 215-216] [746-8-C; 747-8]
Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. 2007 (4)
SCR 1122 = (2007) 6 sec 528 - relied on.
B
Municipal Council of Delhi, Delhi v. Asso~iation of
Victims for Uphaar Tragedy and Ors. 2011 (16) SCR 1 =
(2011) 14 SCC 481; Ankush Shivaji Gaikwad v. State of
Maharashtra (2013) 6 SCC 770 - referred to.
C 4.1. Enforcement of laws is as important as their
enactment, especially where such laws deal with safety
and security of citizens and create continuing obligations
that call for constant vigil by those entrusted with their
administratio.n. Callous indifference and apathy,
D extraneous influence or considerations more often than
not costs the society dearly in man-made tragedies
whether in the form of fire incidents, collapse of buildings
and bridges, poisonous gas leaks or the like. Flawed
investigations and a long winding criminal trial brings the
E case to an uncertain end. [para 1] [593-E-H]
4.2. Adheren_ce to safety standards in cinema
theatres and multiplexes in India is the key to the
prevention of tragedies like the one in the instant case.
F Directions to the authorities to take corrective steps, have
already been issued by a coordinate Bench while dealing
with claims for payment of compensation made by the
legal heirs of those who died and others who were
injured in the incident. [para 218] [748-D, G-H]
G 5. In the result: (i) the conviction and sentences
awarded to A-1 and A-2 are upheld; (ii) the conviction and
sentence of A-15 is also upheld; and (iii) the conviction
of A-9 and A-11 is altered to ss. 337 and 338 read with s.36
IPC without interference with the sentence awarded to
H them. [para 221] [750-H; 751-A, C-D]
SUSHIL ANS.AL v. STATE Tl-IROUGH CBI 587
Per Gyaff ·Sudha ·Misra, J. (Concurring, but partly A
dissenting as reards quantum of sentence):
1.1. The conviction of the accused appellants u/ss
304A, 337, 338 read with s.36 IPC and s.14 of the
Cinematograph Act, 1952 is approved. However, when it
comes to determination and imposition of sentence, it 8
cannot be ignored that the incident happened due to their
gross criminal negligence. The trial court had sentenced
appellants A-1 and A-2 to undergo imprisonment for two
years. However, the High Court although upheld the
conviction of the appellants reduced the sentence to one C
year, for which no specific reason much less cog~nt and
convincing has been assigned.· The fundamen.tal
obligation and duty to care at all times rested with the
occupiers of the cinema house and the licensee thereof.
[para 1, 3, 5 and 15] [751-G-H; 752-A, E; 753-D-E; 760-C] D
Deo Narain Manda/ v. State of Uttar Pradesh (2004) 7
SCC 257; State of U.P. v. Shri Kishan 2004 (6)
Suppl. SCR 530 = (2005) 10 SCC 420 State of Madhya
Pradesh v. Ghanshyam Singh 2003 (3) Suppl. SCR 618 =
(2003) 8 SCC 13 State of M.P. v. Sangram and Ors. AIR 2006 E
SC 48; Sham Sunder v. Puran and Anr. 1990 (1) Suppl.
SCR 662 = (1990) 4 SCC 731 - relied on.
Culpability of the Supervisor or Inspector
1.2. In the instant case, A-9 and A-11 i.e. the Inspector F
and the fitter of DVB were in charge of the maintenance
of the transformer which is a hazardous object. The
callous manner of repair by these accused resulted in the
outbreak of fire which finally resulted in a mass tragedy.
A-15 is the Divisional Officer with DFS. It was his duty to G
inspect the building for the fire hazards and ensure that
it was a safe place for the public. He issued NOC from the
fire safety, though no fire safety and means of e"'~ape
was available as per the standard laid down, in the Jphaar
Cinema. On the basis of this NOC, Temporary License was H
588 SUPREME COURT REPORTS [2014) 9 S.C.R.
A issued by the Licensing Authority. [para 30 and 37] [768·
F-H; 772-A]
1.3. As a consequence of the findings based on the:
analysis of the evidence recorded, sentence of two years
awarded by the trial court was not fit to be interfered with
B by the High Court. In an offence of this nature which can
be put somewhat on par with the well-known tragic
incident commonly known as 'Bhopal Gas Leak Tragedy',
compensation of high quantum along with sentence of
imprisonment may meet the ends of justice which must
C be punitive, deterrent and exemplary in nature. [para 38-
39] [772-B, H; 773-A]
State of Maharashtra vs. Chandra Prakash Neshavdev
1991 Cr.L.J. 3187 - referred to.
D 1.4. Therefore, while the sentence of one year
imposed -by the High Court is upheld, the additional
sentence of one year is fit to be substituted by a
substantial sum of fine to be shared equally by appellants
A-1 and A-2 alongwith the DVB which also cannot
E absolve itself from compensating the victims of the
tragedy. [para 40] [773-G-H]
1.5. In lieu of the enhanced sentence of a period of
one year, the same be substituted with a fine of Rs.100
crores (One Hundred Crores) to be shared and paid by
F A-1 and A-2 in equal measure i.e. 50 crores each, which
shall be kept in a fixed deposit in any nationalised Bank
and shall be spent on the construction of a Trauma Centre
to be built in the memory of Uphaar Victims. For this
purpose, the State of Delhi as DVB which is/was an
G instrumentality of the State shall allot at least five acres
of land or more. [para 44] [776-D-F]
Case Law Reference:
Per Thakur, J.
H 1977 (1) SCR 280 relied on para 44
SUSHIL ANSAL v. STATE THROUGH CBI 589
2006 (1) SCR 519 relied on para 45 A
2009 (14) SCR 755 relied on para 45
2010 (11) SCR 968 relied .on para 45
(2011) 12 sec 554 relied on para 45
8
2011 (10) SCR56 relied on para 45
(1881) 3 All.776 referred to para 48
7 Mad HCR 119 referred to para 48
2005 (2) Suppl. SCR 307 referred to para 55
c
248 NY 339para 56 referred to para 5!)
(1947) KB 901 referred to para 57
278 Mass 31 (1932) referred to para 58 D
380 Mass 350 (1980) referred to para 59
et. Al.741 P.2d 1090 referred to para 60
(Wyo. 1987)
(1947) S.C.R. 486 referred to para 61 E
(2001) 1 ILR Punjab & referred to para 63
Haryana 368
(1966) 1 All ER 582 referred to· para 64
F
(1953) 2 All ER 1185 referred to para 64
(1971) 2 All ER 835 referred to para 64
•
[1999] CrimLR 582 referred to para 65
(1925) 94 L.J.K.B. 791 referred to para 68 G
AIR 1943 PC 72 referred to para 69
(1994) 3 All ER 79 referred to para 72
(1902) 4 Born LR 679 referred to para 75
H
590 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 1965 SCR 622 relied on para 76
1968 SCR 515 relied on para 77
1969 ACJ 70 relied on para 78
AIR 1968 SC 1319 relied on para 78
B
(1970) 3 sec 904 relied on para 78
(1972) 3 sec 18 relied on para 78
2005 (3) Suppl. SCR 371 held para 91
c inapplicable
(1996) 6 sec 685 held para 91
inapplicable
(1917) 2 KB 325 referred to para 93
D
(1934) AC 1 referred to para 99
1968 Mah. L.J. 423 (SC) referred to Para 103
1968 (3) SCR 766 referred to para 104
E /LR XVI All. 472 referred to para 105
1905 PR 22(Cr) referred to para 105
169 English Reports referred to para 105
(C.C.) 1517
F
(1902) 19 TLR 37 referred to . para 105
2011 (16) SCR 1 referred to para 109
[1947) AC 156 referred to para 113
G (1943) AC 448 referred to para 113
2012 (12) SCR 881 referred to para 119
1980 (2) SCR 512 referred to para 127
H 1985 SCR 26 referred to para 145
SUSHIL ANSAL v. STATE THROUGH CBI 591
2011 (4) SCR 50 referred to para 145 A
AIR 1980 Delhi 147 referred to para 148
1958 (2) QBD 245 referred to para 149
1873 VIII Q.B. 161 referred to para 149
B
1948 AC 549. referred to para 149
(1941) 2 KB 343 referred to para 150
AIR 1956 SC 116 referred to para 159
1955 SCR 1057
c
referred to para 160
AIR 1957 SC 823 referred to para 160
1963 Suppl. SCR 328 referred to para 160
1983 (1) SCR 8 referred to para 160 D
2002 (4) Suppl. SCR 188 referred to para 160
2005 (2) Suppl. SCR79 referred to para 160
1963 SCR 489 referred to para 163 E
1974 (1) SCR 489 referred to para 164
2001 (4) Suppl. SCR 448 referred to para 165
AIR 1967 SC 752 referred to para 165
F
1995 (2002) DLT 623 referred to para 186
2012 (1) SCR 145 referred to para 190
•
1996 (6) Suppl. SCR 285 referred to para 190
2012 (12) SCR 881 referred to G
para 194
2011 (6) SCR 384 referred to para 198
2001 (1) SCR 514 referred to para 200
1977 (1) All E.R. 813 referred to para 200 H
592 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 1979 (3) SCR 169 relied on para 201
1991 (3) Suppl. SCR 325 relied on para 201
1970 (2) SCR 742 relied on para 205
1990 (1) Suppl. SCR 662 referred to para 208
B
(2004) 1 sec 257 referred to para 209
2004 (6) Suppl. SCR 530 referred to para 210
2003 (3) Suppl. SCR 618 referred to para 210
c AIR 2006 SC 48 referred to para 211
1991 Supp (1) sec 510 referred to para 214
1995 (2) SCR 900 relied on para 214
D (2013) 6 sec 110 referred to para 215
2007 (4) SCR 1122 relied on para 215
Per Gyan Sudha Misra, J
E 1990 (1) Suppl. SCR 662 relied on para 17
(2004) 1 sec 257 relied on para 18
2004 (6) Suppl. SCR 530 relied on Para 18
2003 (3) Suppl. SCR 618 relied on Para 18
F
AIR 2006 SC 48 relied on Para 18
1991 Cr.L.J. 3187 relied on para 39
CRIMINAL APPELLATE JURISDICTION; Criminal Appeal
G No. 597 of 2010.
From the Judgment & Order dated 19.12.2008 of the High
Court of Delhi at New Delhi in Criminal Appeal No. 794 of 2007.
H
SUSHIL ANSAL v. STATE THROUGH CBI 593
WITH A
Crl.A.Nos. 598., 599", 600-602, 604, 605-616 and 617-627 of
2010.
Ram Jethmalani, Sushil Kumar, Ramesh Gupta, Kailash
Vasdev, Manu Sharma, Sanjay Jain, Lata Krishnamurti, P.R. B
Mala, Pranav Diesh, Karan Kalia, Anand Varma, Afshan
Pracha, Abhir Oatis, Saurabh Taneja, Ali Jethmlani, Ruchika
Bhan, Ashish Dixit, Sanjay Narayan, Aditya Kumar, Vinay
Arora, B. Krishna Prasad, Varinder Kumar Sharma, Shahzid
Khan, Jayant Kumar Mehta, Aseem Mehrotra Shailendra S. C
Dahiya, Abhijat P. Medh, Jagjit Singh Chhabra, Ravindra
Singh, Maheen Pradhan, Jayant Mehta, G. Vardhan, Jayant
Kumar Mehta, Sudarshan Singh Rawat, Vinay Arora, S. Janani
Sunando Raha, Deepak Goel, Sandeep Singh, Gopal Singh,
Manish Kumar, Chandan Kumar, Sanat Tokas, Ashok K. D
Mahajan, Aparjita, T.A. Khan, Arvind Kumar Sharma, RV.
Balramdas, Shrish Kumar Misra for the appearing parties.
The Judgments & Order of the Court were delivered by
T.S. THAKUR, J. 1. Enforcement of laws is as important E
as their enactment, especially where such laws deal with safety
and security of citizens and create continuing obligations that
call for constant vigil by those entrusted with their administration.
Callous indifference and apathy, extraneous influence or
considerations and the cynical "Cha/ta Hai" attitude more often F
than not costs the society dearly in man-made tragedies
whether in the form of fire incidents, collapse of buildings and
bridges, poisonous gas leaks or the like. Short-lived media
attention followed by investigations that at times leave the end
result flawed and a long winding criminal trial in which the G
witnesses predecease their depositions or switch sides under
pressure or for gain and where even the victims or their families
lose interest brings the sad saga to an uncertain end. A
somewhat similar story is presented in these appeals by
special leave arising out of a common judgment and order H
594 SUPREME COURT REPORTS [2014] 9 S.C.R.
A dated 19th December, 2008 passed by a Single Judge of High
Court of Delhi whereby a batch of criminal appeals filed by
those convicted by the trial Court for commission of different
offences and the sentences awarded to them were disposed
of alongwith criminal revision petition no.17 of 2008 filed by the
s Association of Victims of Uphaar Tragedy (hereinafter, "AVUT")
that led to the death of 59 persons besides injuries to nearly
100 others.
2. The High Court has, on a reappraisal of the evidence
C adduced at the trial, acquitted five of the appellants before it
while upholding the convictions of the rest with or without
modification of the nature of offence in some cases and
reduction of the sentence in others. We shall in the course of
this judgment refer in detail to the view taken by the Trial Court
D and the extent and nature of modification made to that by the
High Court in the impugned judgment.
3. Suffice it to say that the fire incident that claimed
valuable human lives took place in the heart of the capital city
of Delhi in a cinema building situate in its posh Green Park
E Extension area on 13th June, 1997. The factual backdrop in
which the unfortunate victims lost their lives or suffered injuries
has been set out by the Trial Court in its judgment and reiterated
by the High Court in the order passed by it without any
significant changes in the narrative. In the Trial Court, as in the
F High Court and even before us there was no serious dispute
as to the cause of the fire leading to the loss of human lives.
We, therefore, would remain content with the broad narration
of the facts as are available from the order passed by the Trial
Court and that passed by the High Court, which are as under:
G
The Incident:
4. Uphaar Cinema building, situate on a plot of 2480
square yards at Green Park Extension Shopping Centre, New
Delhi, comprised a cinema auditorium with a sanctioned
H
SUSHIL ANSAL v. STATE THROUGH CBI 595
[T.S. THAKUR, J.]
capacity of 750 seats besides a balcony with a sanctioned A
capacity of 250 seats. The cinema auditorium comprised the
first floor of the cinema complex while the balcony was
constructed on the second floor. The ground floor of the building
comprised a parking lot besides three separate rooms on the
western side, one of which was used for placing a 500 KVA B
electric transformer that supplied electric energy to the cinema
theatre while the other was used for hot;sing a 1000 KVA
transformer that was installed and maintained by the Delhi
Vidyut Board (hereinafter referred to as "DVB"). It is common
ground that the second transformer even though located within C
the cinema premises, did not supply electricity to the cinema
but rather to some of the tenants occupying parts of the
commercial complex that formed a part of the building and
some other consumers from the locality.
D
5. The prosecution case is that on 13th June, 1997 at about
6.55 a.m. the bigger of the two transformers installed and
maintained by DVB on the ground floor of the Uphaar Cinema
building caught fire. The fire was brought under control by 7.25
a.m. Inspection of the transformer by the Superintendant of the
E
DVB and his team revealed that three of the low tension cable
leads of the transformer had been partially burnt. At about 10.30
a.m., B.M. Satija (A-9) and A.K. Gera (A-10), Inspectors from
DVB along with Senior Fitter, Bir Singh (A-11) conducted
repairs on the transformer by replacing two aluminium sockets F
on the B-Phase of the low tension cable leads. The repairs, it
appear, were carried out with the help of a dye and hammer
without the use of a crimping machine. The transformer was
recharged for resumption of electric supply by 11.30 a.m. on
13th June, 1997.
G
6. The prosecution alleges that repairs conducted on the
transformer in the earlier part of the day were unsatisfactory and
resulted in loose connections that caused sparking on the B-
Phase of the transformer where such repairs were carried out.
Thfs resulted in the loosening of one of. the cables of the . H
596 SUPREME COURT REPORTS [2014] 9 S.C.R.
A transformer which eventually came off and started dangling
loose along the radiator and burnt a hole in the radiator fin.
Through this hole the transformer oil started leaking out which,
on account of the heat generated by the loose cable touching
against the radiator, ignited the oil at about 4.55 p.m. on 13th
B June, 1997. Since the transformer did not have an oil soak pit
as required under the regulations and the standard practice, the
oil that spread out of the enclosure continued leaking and
spreading the fire to the adjacent parking lot where cars were
parked at a distance of no more than a metre from the door of
c the transformer. The result was that all the cars parked in the
parking area on the ground floor of the cinema hall were ablaze.
Smoke started billowing in the northern and southward directions
in the parking lot of the cinema complex. The northern bound
smoke encountered a gate which was adjacent to a staircase
D leading to the cinema auditorium on the first floor. Due to
chimney effect, the smoke gushed into the stairwell and
eventually entered the cinema auditorium through a door and
through the air conditioning ducts. The southward bound smoke
similarly travelled aerially through another staircase and into the
E lower portion of the balcony of the auditorium from the left side.
All this happened while a large number of people were seated
in the auditorium enjoying the matinee show of 'BORDER', a
popular Hindi movie with a patriotic theme. Because of smoke
and carbon monoxide released by the burning oil and other
F combustible material, the people in the auditorium started
suffocating.
7. The Shift In-charge of the Green Park Complaint Centre
of DVB received a telephonic message from K.L. Malhotra (A-
4), since deceased, who was the Deputy General Manager of
G Uphaar Cinema at the relevant point of time, regarding the fire.
It was only then that the AllMS grid to which the transformer in
question was connected was switched off and the flow of
energy to the cinema complex stopped. According to the
H prosecution the supply of the 11 KV outgoing Green Park
SUSHIL ANSAL v. STATE THROUGH CBI 597
[T.S. THAKUR, J.]
Feeder tripped off at 5.05 p.m. thereby discontinuing the supply A
of energy to the cinema.
8. Inside the auditorium and balcony there was complete
pandemonium. The people in the balcony are said to have
rushed towards the exits in pitch darkness as there were neither
8
emergency lights nor any cinema staff to help or guide them.
The prosecution alleged that no public announcement regarding
the fire was made to those inside the auditorium or the balcony,
nor were any fire alarms set off, no matter the management and
the employees of the Uphaar Cinema were aw~re of the fact C
that a fire had broken out. Even the Projector Operator was not
gi'$E3n instructions to stop the film while the fire was raging nor
was any patron informed about the situation outside. On the
contrary, the doors to the middle entrance of the balcony were
found to be bolted by the gatekeeper-Manmohan Uniyal (A-8)
0
who had left his duty without handing over charge to his reliever.
More importantly, the prosecution case is that the addition of
a private 8-seater box had completely closed off the exit on the
right side of the balcony, while the addition of a total of 52 extra
seats over the years had completely blocked the gangway on
the right side of the balcony. Similarly, the gangway on the right E
of the middle entrance was significantly narrower than required
under the regulations. It was alleged that Sushil Ansal (A-1) and
Gopal Ansal (A-2), the owners of the cinema hall, had
knowledge of these deviations from fire safety norms despite
which they had continued exhibiting films, thereby endangering F
the lives of all those who patronized the theatre. All these
obstructions, deviations, violations and deficiencies had,
according to the prosecution, resulted in the victims getting
trapped in the balcony for at least 10-15 minutes exposing them G
to lethal carbon monoxide, to which as many as 59 persons
eventually succumbed.
9. Rescue operations attempted by the fire tenders from
the Bhikaji Cama Place and Safdarjung Fire Stations were
undertaken after the Delhi Fire Service received a complaint H
598 SUPREME COURT REPORTS [2014] 9 S.C.R.
A from K.L. Malhotra (A-4), since deceased, at 5.10 p.m. The fire
tenders took nearly forty five minutes to one hour to extinguish
the fire and to rescue the persons trapped in the balcony by
opening the bolted doors and taking those who had collapsed
and those injured to the hospitals. No one from the staff or
B management of the theatre was, according to the prosecution,
present at the spot to lend a helping hand in the rescue
operations.
Investigation and Charges:
C 10. Investigation into the fire incident and the resultant
causalities started pursuant to FIR No.432/97 registered at
Police Station, Hauz Khas on the basis of a written complaint
filed by one Sudhir Kumar, Security Guard, employed by the
management of the cinema complex. The investigation was
D initially conducted by the Delhi Police but was soon thereafter
transferred to the Crime Branch and eventually to the Central
Bureau of Investigation under the Delhi Special Police
Establishment Act, 1946. The CBI registered case bearing
No.RC-3(S)/97/SIC.IV/New Delhi on 25th July, 1997.
E
11. The investigating agencies first looked into the
incidents of fire and got prepared and seized the record
relevant thereto, including a report signed by B.M. Satija (A-
9), A.K. Gera (A-10), Inspectors and Bir Singh (A-11) Senior
F Fitter, which dealt with the nature of repair that was conducted
on the DVB transformer after the first incident. The investigating
agencies also looked into the chain of events that led to the
second fire at around 5.00 p.m. and the entry of smoke into the
cinema auditorium and the balcony. A report from the Central
G Building Research Institute was also obtained by the
investigating agencies on 17th August, 1997 under the
signatures of T.P. Sharma (PW-25). Expert opinion of K.V.
Singh, Executive Engineer (Electrical), PWD was also obtained
by the investigating officers on 29th June, 1997, in addition to
H two CFSL reports prepared by Dr. Rajender Singh forwarded
SUSHIL ANSAL v STATE THROUGH CBI 599
[T.S. THAKU.R, J.]
to the Hauz Khas Police Station on 27th June, 1997 and to the A
CBI on 11th August, 1997. These reports were marked Exs.
PW 64/B and PW 64/D at the trial.
12. The investigating officers also examined the cause of
malfunctioning of the DVB transformer and obtained a report
B
Ex. PW24/A in that regard from Mr. K.L. Grover, Electrical
Inspector and Mr. AK. Aggarwal, Assistant Electrical Inspector
on 25th June, 1997. The report obtained from Professor M.L.
Kothari of llT, New Delhi, on 2nd July, 1997 analysed and
attributed the cause of fire to malfunctioning of the DVB C
transformer.
13. The investigating agencies then looked into the fire
safety deviations in the Uphaar Cinema building to determine
whether the same had contributed to the fire and hindered the
escape of those seated in the cinema auditorium and balcony D
from the poisonous carbon monoxide that had polluted the
atmosphere inside the complex. Reports from Executive
Engineers, MCD were also obtained in this regard. A
Panchnama depicting floor-wise deviations in the Uphaar
Cinema building and an Inspection-cum-Scrutiny report marked E
as Ex.PW 2/A indicating the structural deviations was also
submitted by the MCD to the CBI on 11th August, 1997.
14. Similarly, the investigating agencies collected a fire
report marked Ex. PW 49/E from the Delhi Fire Service F
regarding the rescue operations conducted by the fire service
personnel on the date of the occurrence.
15. Post:•mortem conducted on the dead body of Captain
M.S. Bhinder, one of the unfortunate victims, revealed that the G
cause of death was asphyxiation. From the report of Dr. T.D.
Dogra, Forensic Expert, obtained on 18th September, 1997,
the investigating officers concluded that the rapid death of the
vic.tims could have been caused by inhalation of a combination
of toxic gases including carbon monoxide and sulphur dioxide
H
600 SUPREME COURT REPORTS [2014] 9 S.C.R
A which were produced by combustion of articles like diesel,
petrol, rubber and styrene.
16. Statements of a large number of witnesses relevant to
the fire incident, its causes and effects were also recorded by
B the investigating agencies from time to time culminating in the
filing of a common chargesheet 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
C 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, I PC 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
D 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), AK. Gera (A-10) and Senior Fitter,
Bir Singh (A-11) were also charged with the commission of
E 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.
F
17. Since some of the offences with which the accused
persons were charged were triable by the Court of Sessions,
the case was committed for trial to Additional Sessions Judge,
New Delhi, who framed specific charges against Sushil Ansal
G (A-1 ), Gopal Ansal (A-2) and the rest of the accused.
18. Sushil Ansal (A-1) and Gopal Ansal (A-2), who happen
to be brothers, were charged with offences punishable under
Sections 304A read with Section 36 and Sections 337 and 338
H read with Section 36 IPC for their negligent acts of omission
SUSHIL ANSAL v. STATE THROUGH CBI 601
[T.S. THAKUR, J.]
and commission of allowing installation of the DVB transformer, A
various structural and fire safety deviations in the building in
violation of various Rules and not facilitating the escape of
patrons which caused the death of 59 persons and simple and
grievous injuries to 100 others in the fire incident mentioned
above. They were also charged under Section 14 of the 8
Cinematograph Act, 1952 for contravention of the provisions
of the Delhi Cinematograph Rules, 1953 (hereinafter referred
to as 'OCR, 1953') and Delhi Cinematograph Rules, 1981
(hereinafter referred to 'OCR, 1981 ').
c
19. Managers, R.M. Puri (A-3), since deceased, K.L.
Malhotra (A-4) since deceased, R.K. Sharma (A-5) since
deceased, N.S. Chopra (A-6), Ajit Choudhary (A-7), since
deceased and Manmohan Uniyal (A-8), gatekeeper were also
charged with commission of offences punishable under Section 0
304 read with Section 36 of IPC since, despite being present
at the time of the fire incident, they failed to inform, alert and
facilitate the escape of the patrons from the balcony during the
fire while knowing fully well that their act was likely to cause
death or such bodily injuries as was likely to cause death. E
20. Similarly, B.M. Satija (A-9), AK. Gera (A-10) and Bir
Singh (A-11) were charged with commission of offences
punishable under Section 304 read with Section 36 IPC in that
they had not used the required crimping machine while
repairing the DVB transformer after the first fire incident on 13th F
June, 1997 knowing fully well that this could and did cause the
transformer to catch fire once again and result in the death or
bodily injury as was likely to cause death of persons in the
building.
G
21. The rest of the accused persons namely, S.N.
Dandona (A-12) since deceased, S.S. Sharma (A-13), N.D.
Tiwari (A-14), H.S. Panwar (A-15) and Surender Dutt (A-16)
since deceased, were charged with offences punishable under
Sections 304A, 337 and,338 IPC read with Section 36 IPC for H
602 SUPREME COURT REPORTS [2014] 9 S.C.R.
A causing the death of 59 persons and simple and grievous
injuries to 100 others by their acts and omissions of negligently
issuing No Objection Certificates to Uphaar Cinema without
ensuring that the statutory requirements for fire safety and
means of escape were adhered to.
B
22. All the accused persons pleaded not guilty to the
charges framed against them and claimed a trial. Not only that,
all of them filed writ petitions before the Delhi High Court
against the order framing charges passed by the Trial Court
c which were dismissed by the High Court in terms of four
separate orders passed by it. A Special Leave Petition filed
against the order of dismissal of the writ petition by Sushi!
Ansal (A-1) was dismissed as withdrawn by an order of this
Court dated 12th April, 2002.
D Evidence at the Trial:
23. At the trial the prosecution examined as many as 115
witnesses in support of its case apart from placing reliance
upon nearly 893 documents marked in the course of the
E proceedings. The oral evidence adduced broadly comprised
depositions of witnesses whom providence helped to escape
alive from the cinema complex on the fateful day. These
witnesses narrated the events inside the cinema hall and the
confusion that prevailed after people started suffocating
F because of smoke entering from in front of the screen and
through theAC ducts before the hall was eventually plunged into
darkness, leaving the people inside trapped without any
emergency lights or help coming from any quarter. Those in the
balcony found that they could not escape since all the doors
G were locked. The depositions comprising Kanwaljeet Kaur
(PW-1), Karan Kumar (PW-3), Rishi Arora (PW-7), Amit (PW-
8), Hans Raj (PW-11) and Satpal Singh (PW-12) gave graphic
accounts of the situation that prevailed inside the cinema hall
and the rescue operations after the Fire Brigade arrived to help
H them out.
SUSHIL ANSAL v. STATE THROUGH CBI 603
[T.S. THAKUR, J.)
24. The evidence also comprised the depositions of A
Neelam Krishnamoorthy (PW-4), Ajay Mehra (PW-5), Harish
Dang (PW-q), Satish Khanna (PW-9), Kishan Kumar Kohli
(PW-10), Raman Singh Sidhu (PW-13) and Surjit Singh (PW-
66) relatives of some of the victims, who narrated their travails
and proved the death certificates of those lost in the tragedy. B
Neelam Krishnamoorthy (PW-4) happens to be the unfortunate
mother of two who were seated in the rightmost two seats in
the front row of the balcony.
25. Some of the onlookers and others who helped in the C
rescue operations were also examined by the prosecution
apart from the officers of the Delhi Fire Service. R.C. Sharma
(PW-49) Chief Fire Officer, testified to the presence of smoke
in the stairwell and the balcony and stated that he could not
open the balcony door until he received help of two other D
officers. Depositions of B.L. Jindal (PW-15) and Ram Kumar
Gupta (PW-17) who happened to be the Assistant Engineer
and Junior Engineer respectively of the MCD were also
recorded. A large number of 14 witnesses were examined to
prove the structural deviations in the building upon an inspection
E
conducted after the fire incident. An equally large number of 33
witnesses were examined to prove documents relied upon by
the prosecution. Witnesses were also examined to prove the
sanction orders issued by the competent authority to prosecute
some of the accused who happened to be public servants.
Evidence regarding the ownership, management and · F
administration of the company which owned Uphaar Cinema,
M/s Green Park Theaters Associated (P) Ltd. was also
adduced.
26. Medical evidence led at the trial comprised the G
deposition of Dr. T.D. Dogra (PW-62) who proved the death
certificates oJ41 victims in which the cause of death was stated
to be suffocation. In addition, Dr. S. Satyanarayan (PW"77) who
conducted the post-mortem on the dead body of Captain M.S.
Bhinder was also recorded. Officials from DVB and those H
604 SUPREME COURT REPORTS [2014) 9 S.C.R.
A connected with the investigation too were examined by the
prosecution before closing its case.
Findings of the Trial Court:
27. The Trial Court appraised the evidence led at the trial
8 including the depositions of three defence witnesses, one each,
examined by H.S. Panwar (A-15), Bir Singh (A-11) and A.K.
Gera (A-10) and recorded findings and conclusions that may
be summarized as under:
C (a) That Uphaar Cineina was owned by a company that
was closely held by Sushi/ Ansal (A-1) and Gopal Ansal
(A-2) and other members of their family and that several
violations regarding the installation of a transformer and
the seating arrangement in the balcony, structural
o deviations in the building were committed while Sushi/
Ansal (A-1) and Gopal Ansal (A-2) were either Directors
or the Managing Directors of the said company. Even after
the alleged resignation of the Aosal brothers in the year
1988 they continued to be in control of the management
E of the cinema and the running of its day-to-day affairs,
including exercising control over the Managers and other
staff employed.
(1) In coming to that conclusion, the Trial Court relied upon
both documentary and oral evidence adduced before it by the
F prosecution. The Trial Court found that application dated 2nd
February, 1973 made to the erstwhile DESU for grant of
electricity connection for Uphaar Cinema was signed by Sushi!
Ansal (A-1). So also letter dated 2nd February, 1973 by which
the company had agreed to give DESU two rooms for their
G transformer and HT and LT panels at a nominal rent of Rs.11/
- per year was signed by Sushil Ansal (A-1). The fact that the
original licence granted to Uphaar Cinema was granted in
favour of M/s Green Park Theatres Associated (P) Ltd. (in short,
"GPT") through Sushi! Ansal (A-1) as the Managing Director at
H that time, as also the fact that Sushi! Ansal (A-1) continued to
SUSHIL ANSAL v. STATE THROUGH CBI 605
[T.S. THAKUR, J.]
be representative licensee for the cinema was also relied upon A
by the Trial Court in support of its conclusion that Sushil Ansal
(A-1) exercised control and management over Uphaar Cinema
at the relevant point of time. Reliance was also placed by the
Trial Court upon letter dated 19th June, 1974 written on behalf
of GPT by Sushil Ansal (A-1) whereby the Entertainment Officer B
was requested to permit the owner to lease out the top floor of
Uphaar Cinema for office use and the ground floor for
commercial establishments. An affidavit dated 21st March,
1975 and letter dated 2nd April, 1979 filed in connection with
renewal of the cinema license were also relied upon by the Trial C
Court to show that Sushil Ansal (A-1) was not only the licensee
of Uphaar Cinema, but also that he had held himself out in that
capacity before the concerned authorities. Letter of authority
authorizing V.K. Bedi, Architect, to dea~ discuss, explain and
make corrections in the building plan as well as to collect the D
sanction plan on his behalf as also reply to show-cause notice
dated 11th May, 1981 issued by the Deputy Commissioner of
Police (Licensing) [in short, "DCP (L)"] which too was sent by
Sushil Ansal (A-1) as licensee for GPT were relied upon by the
Trial Court to buttress its conclusion that Sushil Ansal (A-1) was
the person exercising control over the affairs of the cinema and E
its Managing Director.
(2) The Trial Court noted that although Sushil.Ansal (A-1)
had resigned from the Directorship of the company on 17th
October, 1988, he had continued to be the licensee of the F
cinema as is evident from an affidavit dated 3rd March, 1992
(Ex. PW50/B) addressed to DCP (L) seeking renewal of the
license for the years 1992-93. In the said affidavit the Trial
Court observed that Sushil Ansal (A-1) clearly mentioned that
he continued to be the occupier of the licensed premises and G
the owner of the Cinematograph. Minutes of the meeting of the
Board of Directors held on 24th December, 1994 were also
noticed by the Trial Court to show that although Sushil Ansal
(A-1) resigned from the Directorship of the company in 1988
he had continued to be involved in the affairs of the cinema, H
606 SUPREME COURT REPORTS [2014] 9 S.C.R.
A no matter in the capacity of a Special Invitee. Reliance was also
placed by the Trial Court upon the inspection proformas of the
Delhi Fire Service for the years 1995-1997 to show that Sushi!
Ansal (A-1) continued to be shown as licensee of Uphaar
Cinema.
B
(3) The Trial Court placed reliance upon the financial
authority and the control exercised by Sushi! Ansal (A-1) in the
affairs of the cinema hall. ln this regard the Trial Court referred
to a self-cheque (Ex.PW91/B) dated 26th June, 1995 for a sum
C of rupees fifty lakhs drawn by Sushi! Ansal (A-1) from the
accounts of GPT. Closer to the date of occurrence, the Board
of Directors of the company had on 25th March, 1996 passed
a resolution authorising Sushi! Ansal (A-1) to operate the bank
accounts of the company upto any amount. The Trial Court also
D relied upon other circumstances to support its conclusion that
although Sushi I Ansal (A-1) claims to have resigned from the
Directorship of the company in the year 1988, he continued to
be the heart and soul of the company and in complete
management of the cinema affairs. Reliance was also placed
E upon Ex. PW103/XX3 by which Sushil Ansal (A-1) was
appointed authorized signatory to operate the Current Accounts
with various banks.
(4) The Trial Court similarly referred to and relied upon
several pieces of documentary evidence in holding that Gopal
F Ansal (A-2) also exercised extensive control over the affairs of
the cinema. The Court, in particular, relied upon the resolution
of the Board of Directors passed on 15th July, 1972
(Ex.PW103/XX) according to which Gopal Ansal (A-2) was
authorised to sign all documents, drawings and other connected
G papers regarding the submission of revised plans, applications
for electricity connections concerning Uphaar Cinema, etc.
Letter dated 24th May, 1978 (Ex. PW11 O/AA20), addressed
by Gopal Ansal (A-2) as Director, GPT seeking permission to
install an eight-seater box and reply dated 6th December, 1979
H
SUSHIL ANSAL v. STATE THROUGH CBI 607
[T.S. THAKUR, J.]
to the show-cause notice for removal of one hundred extra A
seats after withdrawal of the 1979 resolution which was signed
by Gopal Ansal (A-2) as Director of GPT were also relied upon
by the Trial Court. Similarly, letter dated 29th July, 1980
addressed to DCP(L) for the installation of fifteen additional
seats in the balcony was found to have been written by Gopal B
Ansal (A-2) as Director, GPT. Reply to the show-cause notice
dated 28th May, 1982 was similarly found to have been given
by Gopal Ansal (A-2) as Director of GPT in which he tried to
explain the reasons for the bolting of doors from the inside
during exhibition of a film and gave assurance that the utmost C
precaution would be taken by the management in future. The
Trial Court also relied upon the fact that the car parking contract
was granted by Gopal Ansal (A-2) as Director of GPT in April,
1988.
D
(5) The Trial Court further relied upon the Minutes of the
Meeting held on 25th March, 1996 of the Board of Directors of
the company appointing Gopal Ansal (A-2) as authorised
signatory upto any amount to operate the bank accounts.
Cheques issued by Gopal Ansal (A-2) subsequent to the said
E
authorisation in favour of the Chief Engineer (Water) and in
favour of the Music Shop from the accounts of GPT which later
was rechristened as Ansal Theaters & Clubotels (P) Ltd. were
also relied upon by the Trial Court in support of its conclusion
that Gopal Ansal (A-2), like his brother Sushil Ansal (A-1), even
F
after resigning from the Directorship of the company, continued
to exercise control over the affairs of the cinema complex. This
was, according to the Trial Court, evident from the fact that
Gopal Ansal (A-2) was appointed authorised signatory to
operate the current accounts, as was the case for Sushil Ansal G
(A-1) also.
(6) Last but not the least, the Trial Court relied upon the
Minutes of the Meeting dated 27th February, 1997 (Ex. PW98/
X4) in which Gopal Ansal (A-2), described as "MD" of the
company, is said to have desired that not even a nail be put in H
608 SUPREME COURT REPORTS [2014] 9 S.C.R.
A the cinema premises without his prior permission. Similarly, in
the Minutes of the MD Conferences dated 2nd April, 1997 and
1st May, 1997, Gopal Ansal (A-2), described as "MD in Chair",
issued instructions in this capacity regarding a large number
of business decisions and day-to-day affairs of the company.
B The Trial Court held that Gopal Ansal (A~2) was proved to be
MD in Chair by letters marked (Ex. PW98/X-2) and (Ex. PW98/
X-3). He was also shown to be "MD in Chair" for the MD
Conference held on 7th May, 1997 in terms of letter dated 9th
May, 1997 marked Ex. PW98/X-C.
c
(b) That a 750 KVA DVB transformer was installed in the
cinema premises in complete violation of the Electricity
Rules and in breach of the sanctioned plan for the
building.
D (1) The Trial Court found that the sanctioned plan marked
Ex. PW15 Y/3 provided for three adjacent rooms on the ground
floor each measuring 20x10 feet to be used for J
installation of
a transformer. The first of these three rooms was to be used
for HT cables that would bring high voltage current from the
E AllMS Grid Station. The second room was to be used for
installing the transformer that would step down the high density
current and transmit the same to the third room which was
meant for LT cables from where the current would then be
supplied to the cinema building.
F
(2) Relying upon the report submitted by Mr. K.L. Grover
(PW-24), the Electrical Inspector, the Trial Court concluded that
it was essential for the management of the cinema to obtain
permission from the Licensing Department as also from the
G Municipal Corporation of Delhi (in short, "MCD") prior to the
installation of the said transformer. Instead of doing so, the
internal positioning of the walls of the transformer area
comprising the three rooms mentioned above was changed
without so much as notifying the MCD about the said change
H or obtaining its sanction for the same. Reliance was, in this
SUSHIL ANSAL v. STATE THROUGH CBI 609
[TS. THAKUR, J.]
regard, placed by the Trial Court upon the depositions of R.N. A
Gupta, Executive Engineer, MCD (PW-2) and Shri K.L. Grover,
Electrical Inspector (PW-24).
(3) The Trial Court also looked into the Rules regarding
installation of transformers in the Bureau of Indian Standard: B
10028 (Part 11) - 1981 and the Building Bye Laws, 1983 to hold
that the installation of the transformer in question did not adhere
to the following three distinct requirements under the rule$:
The two transformers namely .one installed by the
management of the company owning the cinema C
and:- the other installed by the DVB were not
separated by a ·fife r.esistant wall as required in
Para 3.6.2, IS: 10028 (Part II) -1981.
(ii) The transformers did not have oil soak pits D
necessary for soaking the entire oil content in the
transformers as required in Paras 3.6.3 and 3.6.4,
IS: 10028 (Part II) - 1981.
(iii) The rooms where the transformers were kept did E
not have proper ventilation and free movement of
air on all four sides of the transformers, nor were
adequately sized air inlets and outlets provided to
ensure efficient cooling of the transformers as
required in Paras 7.3.1.1 and 7.3.1.4, IS: 10028
(Part II) - 1981. F
(4) Having said so, the Trial Court rejected the contention
urged on behalf of the Ansal brothers (A-1 and A-2) that they
were coerced into providing space for the DVB transformer by
the DVB authorities. The Court found that correspondence G
exchanged between GPT and the DVB authorities did not
suggest that the Ansals were forced to provide space for the
DVB transformer as contended by them.
H
610 SUPREME COURT REPORTS [2014] 9 S.C.R.
A (c) That the condition of the DVB transformer was wholly
unsatisfactory and that the fire had started on account
of the sparking of the loose connection of the cable and
socket of the b?.r of the said transformer.
B (1) Relying upon the depositions of K.L. Grover, the
Electrical Inspector (PW-24), T.P. Sharma, CBRI Expert (PW-
25), K.V. Singh, Executive Engineer (Electrical), PWD (PW-35),
Professor M.L. Kothari from llT (PW-36) and Dr. Rajinder
Singh, Sr. Scientific Officer, CFSL, (PW-64), as well as their
C respective inspection reports, marked Ex. PW24/A, Ex. PW25/
A, Ex. PW35/A, Ex. PW36/A and Ex. PW64/B, the Court held
that the condition of the DVB transformer was wholly
unsatisfactory on account of the following:
(i) The transformer did not have any protection system
D as required by the Electricity Act.
(ii) The terminals on the LT side were not enclosed in
a box, unlike in the case of the Uphaar transformer.
(iii) The LT side cables from the bus bar lacked any
E
kind of clamping system or support for the cables.
(iv) There was no relay system connected to the HT
Panel board of the DVB transformer which could
have tripped in case of any fault.
F
(v) The check nut of the neutral terminal was found to
be loose.
(vi) There were earth strips lying in the transformer room
but these were not properly joined.
G
(vii) The connection between earth and neutral was also
broken.
(viii) The LT Panel's outgoing switches did not have
H fuses.
SUSHIL ANSAL v. STATE THROUGH CBI 611
[T.S. THAKUR, J.]
(ix) No HRC (High Rupture Capacity) fuses were found A
and use of wires, in lieu of it was not proper.
(x) All the four oil circuit breakers were completely
unprotected against earth faults and over current.
(xi) The potential transformer was found to be in the B
disconnected condition of the OCB operation
mechanism. Its battery and charger were also found
to be defective and heavily damaged in the fire.
(2) The Court further held that fire in the DVB transformer c
had resulted on account of the sparking by the loose connection
of the cable end socket of the bus bar of the DVB transformer.
The cable end socket of the B-phase bus bar was
unsatisfactorily repaired since it was fixed by hammering and
not by using a crimping machine. The LT cable got D
disconnected from the cables on the B-phase and made a hole
in the radiator fin when the live conductor of the disconnected
cable fell upon it. Transformer oil gushed out of the opening on
to the floor, while continued short circuiting of the cable with the
radiator fin in the absence of a protection relay system caused E
sparking, which in turn resulted in the oil from the transformer
catching fire. The sparking would have continued for a
significant amount of time since there was no immediate
tripping system available in the HT panel. Tripping was
ultimately found to have taken place at the 33 KV sub-station F
at AllMS. The main switch from the generator which was going
to the AC blower was found to be fused. The fuses were found
to be inside the body of the switch. The condition of dust
covered fuses suggested that they had been out of use for a
longtime. G
(d) That the parking of extra cars and the parking of cars
close to the transformer in what was meant to be a 16 ft.
wide passage for free movement of the vehicles
aggravated the situation and contributed to the incident.
H
612 SUPREME COURT REPORTS [2014] 9 S.C.R.
A The Trial Court found that apart from petrol and diesel
cars, CNG gas cylinders and upholstery comprising
combustible material emitted smoke when burnt
containing carbon monoxide, carbon dioxide and other
hydrocarbons which resulted in suffocation of those
B inside the balcony of the cinema.
(1) The Trial Court held that the management of the cinema
had disregarded the requirements of law and the sanctioned
plan, thereby putting the lives of the patrons at risk. The Court
C found that there was nothing on record to show that the'Ansal
brothers (A-1 and A-2) or the Managers of the cinema for that
matter had impressed upon the contractor appointed by them
the legal and safety requirements of maintaining a safe distance
between vehicles and the transformer room when they entered
into a parking contract in the year 1988. This, according to the
0
Court, was gross negligence that contributed to the death of a
large number of patrons and injuries to many more. The Trial
Court in support of that conclusion relied primarily upon the
following pieces of evidence:
E (i) The sanctioned plan for the ground/stilt floor of the
Uphaar Cinema building as also the report of R.N.
Gupta, Executive Engineer, MCD (PW-2),
according to which the provision for parking of
fifteen cars was made on the said floor. The plan
F ·also earmarked a 16 feet wide passage to be
maintained alongside the transformer rooms for the
easy maneuvering of vehicles .
.(ii) The deposition of R.K. Sethi (PW-56), the parking
contractor, proved that cars were parked at a
G
distance of no more than 3-4 feet from the
transformer room. On the fateful day parking tokens
had been issued for 18 cars for the matinee show,
apart from 8-10 office cars that were parked in the
parking lot.
H
SUSHIL ANSAL v. STATE THROUGH CBI 613
[T.S. THAKUR, J.]
(iii) The deposition of K.V. Singh, Executive Engineer A
(Electrical), PWD (PW-35) and the report marked
Ex.PW35/A which proved that the fire situation had
been aggravated due to the presence of petrol and
diesel in the fuel tanks of the vehicles parked in front
of the transformer rooms. B
(iv) Loc~I Inspection Note of the place of incident
prepared by the Trial Court which supported the
conclusion that cars had been parked in close
proximity to the transformer room and that the same C
were burnt in the incident.
(2) Absence of proper care on the part of the management
in ensuring that only the permissible number of vehicles were
parked in the parking area and that a 16 ft. wide passage
remained free from any obstruction were held by the Trial Court D
to be acts of gross negligence on the part of the management,
endangering the lives of the patrons visiting the cinema and
contributing to the magnitude of the hazardous gases that
eventually led to the death of a large number of innocent victims.
E
(e) That there were several structural deviations in the
cinema building apart from a rear wall behind the HT/LT
room that was found to be constructed up to a height of
12 feet even though it was sanctioned only up to a height
of 3 feet.
F
(1) Relying upon the deposition of B.S. Randhawa, ASW,
PWD (PW-29) and Ex. PW29/A, the panchnama/report offloor-
wise deviations prepared by him along with Dalip Singh,
Executive Engineer, PWD and Prithvi Singh, DSP, the Court
held that the construction of the rear wall beyond 3 feet had G
affected the ventilation in the area and obstructed the dispersal
of smoke in the atmosphere. The Court rejected the contention
that PW-29 had been tutored since he had made no mention
of the obstruction of smoke in the report, Ex. PW29/A. The
H
614 SUPREME COURT REPORTS (2014] 9 S.C.R.
A Court found that his testimony had been corroborated by the
sanctioned plan Ex. PW15/Y-3, which too only allowed a wall
upto a height of 3 feet.
(2) Similarly, the Court found certain other structural
B deviations in the cinema building some of which contributed to
the fire, smoke and obstruction of escape claiming human lives
by asphyxia. The Court in this regard placed reliance upon Ex.
PW17/D, the report prepared by R.K. Gupta, Junior Engineer,
MCD (PW-17) and the deposition of R.S. Sharma (PW-18) and
c Vinod Sharma (PW-20). The Court also placed reliance upon
Ex. PW2/A which happened to be the inspection-cum-scrutiny
report dated 2nd August, 1997 submitted by the MCD
Engineers depicting floor-wise deviations and deposition of
R.N. Gupta, Executive Engineer, MCD (PW-2) in that regard.
Reliance was also placed upon the depositions of R.K.
0
Bhattacharaya (PW-39) and the inspection note prepared by
the Trial Court based on its inspection on the spot as per the
direction of the High Court. Based on the said evidence the
Trial Court enumerated the following structural deviations in the
E Uphaar Cinema building:
Basement
(i) A 12' X 20' room was constructed adjoining the
staircase.
F
(ii) A 26' X 20' room was constructed adjoining the
blower room.
(iii) A wooden store with wooden partitions was being
used.
G
(iv) One 40' long and one 20' long brick wall were
constructed and old seats were found partially filling
the space between them.
H
SUSHIL ANSAL v. STATE THROUGH CBI 615
[T.S. THAKUR, J.}
Ground Floor/Stilt Floor A
(i) A 20' X 9' Homeopathy Dispensary was constructed
above the ramp, behind the transformer room.
(ii) Behind the HT, LT and transformer rooms, the outer wall
was built up from a height of 3' to the height of the first floor. B
(iii) Though externally unchanged, the partitions between
the HT, LT and transformer rooms were shifted to alter the
rooms' internal sizes.
(iv) A 14' X 7' room adjoining the HT room was being used
c
as a ticket counter.
(v) A 20' X 20' ticket foyer was converted into Syndicate
Bank. Sanjay Press Office was found in place of the restaurant
on the front side. D
(vi) A mezzanine floor was constructed using R.S. Joists
of timber, at a height of 8' above the stilt floor, to be used as
offices. This was completely burnt in the fire.
E
(vii) A small construction was made using RCC slabs on
the mid landing of the staircase at a height of 8' above the stilt
floor to be used as offices. ·
(viii) M/s Sehgal Carpets was occupying a partition of the
staircase leading to the basement around the lift well. F
Foyer/First Floor
(i) A refreshment counter was found constructed between
the expansion joint and the staircase. G
(ii) A second refreshment counter was constructed near the
rear exit gate, 10'9" away from the auditorium exit gate.
H
616 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Mezzanine Floor/Balcony
(i) A refreshment counter covering 21' X 9' was found
between the doors of the toilet and the staircase.
(ii) An office room was constructed in place of the sweeper
8
room and' adjoining toilets.
(iii) The operator room was converted into an office-cum-
bar room.
c (iv) A door of full width on the right side of the staircase
landing between the Projection Room floor and the loft floor was
found to be obstructing the path to the terrace.
(v) Sarin Associates' reception counter was found in the
staircase leading to the terrace, thereby obstructing the
0 passage way.
Top Floor
(i) A large hall at the loft level was converted into office
E cabins with wooden partitions and the same appeared to be
occupied by Sarin Associates, Supreme Builders, Supreme
Promoters, Supreme Marketing (P) Ltd. And Vikky Arin lmpex
(P) Ltd.
(ii) The staircase above the loft level was converted into
F an office.
(f) That, apart from structural deviations referred to above,
the seating arrangement within the balcony area of the
cinema was itself in breach of the mandatory
G requirements of the DCR, 1953 arid DCR, 1981.
(1) Relying upon the Completion Certificate Ex. PW17/DA,
dated 10th April, 1973, the Trial Court held that the number of
seats originally sanctioned for the balcony was limited to 250
H seats (two hundred and fifty seats). The Court also noticed that
SUSHIL ANSAL v. STATE THROUGH CBI 617
[T.S. THAKUR, J.]
the first seating plan Ex. PW95/B 1 was in conformity with the A
OCR, 1953 and provided a total of three exits, one each on
the two sides of the balcony and the third in the middle.
Gangways leading to these exits were also found to be in
conformity with the statutory requirements which prescribed a
width of 44 inches for the same. In the year 1974, however, B
Sushi! Ansal (A-1) made a request for installation of 14 seats
in what was originally sanctioned by the MCD to be an
Inspection Room, pursuant whereto the Inspection Room was
converted into a 14-seater box with the permission of the
licensing authority. Two years later, a development of some C
significance took place inasmuch as by a Notification dated
3oth September, 1976 issued by the Lt. Governor of Delhi,
Uphaar Cinema permitted addition of 100 more seats to its
existing capacity. Forty three of the said additional seats were
meant to be provided in the balcony by using the vertical D
gangways to the right of the middle entry/exit of the cinema in
the right wing of the balcony. The remaining 57 seats were
meant for addition in the main auditorium of the cinema hall.
The addition of these seats was approved on 3oth September,
1976 as per the seating plan marked Ex. PW95/B-2. E
(2) As per the above seating plan the vertical gangway
along the rightmost wall of the balcony was completely utilized
and blocked because of the installation of the additional seats
whereas the width of the gangway along the right side of the
F
middle entry/exit was reduced to 22.5 inches, the remainder of
the space having been utilized for fixing 32 additional seats in
that area. The addition of 11 more seats to the row along the
back of the balcony (1 on the right, 8 in the middle and 2 on
the left side) made up for the remainder of the 43 additional G
seats permitted under the Notification. The Trial Court found that
in order to compensate for the blocking and narrowing of the
gangways in the right wing, the seating plan provided for a 44
inch wide vertical gangway along the middle of the right wing
of the balcony. Inevitably, the altered seating arrangement H
618 SUPREME COURT REPORTS [2014] 9 S.C.R.
A made it relatively more difficult for those occupying the right wing
of the balcony to reach the exit.
(g) That an eight-seater family box was added in the year
1978 upon an application moved by Gopal Ansal (A-2),
B which had the effect of completely closing the right side
exit, access to which already stood compromised on
account of the additional seats.
(1) The above addition was made pursuant to a report
given by S.N. Oandona (A-12), since deceased, who at the
C relevant time was posted as Executive Engineer, PWD and
who appears to have inspected the site on 27th June, 1978 on
a reference made to him by the Entertainment Tax Officer. What
is significant is that the Entertainment Tax Officer had by his
letter dated 2nd September, 1978 asked S. N. Oandona (A-12)
D to confirm his report pursuant to the inspection conducted by
him, drawing his attention to Clause 6 of the First Schedule of
OCR, 1953, which required that the total number of spectators
accommodated in the building shall not exceed 20 per 100 sq.
ft. of the area available for sitting and standing, or 20 per 133.5
E sq. ft. of the overall area of the floor space in the auditorium.
Mr. Dandona (A-12) replied in terms of his letter dated 20th
September, 1978 Ex. PW29/0N, that the installation of the
eight-seater box was in accordance with the prevalent OCR,
1953.
F
(2) The Trial Court found fault with the installation of the
eight-seater box and held that even though permission for
installation of the box had been granted to the Ansals (A-1 and
A-2), the same continued to be in clear violation of Para 10(4)
G of the First Schedule to DCR, 1953 which in no uncertain terms
stipulated that exits from the auditorium shall be placed suitably
along both sides and along the back thereof.
(h) That to compensate for blocking of the exit on the right of
H the eight-seater box, an exit was provided along the back on
SUSHIL ANSAL v. STATE THROUGH CBI 619
[T.S. THAKUR, J.]
the left side. This addition of an exit on the left side of the A
balcony did not satisfy the stipulation under Para 10(4) of the
First Schedule of OCR, 1953.
(1) The object underlying para 10(4) of the First Schedule
of OCR, 1953, observed the Trial Court, was to ensure rapid
B
dispersal in both directions through independent stairways
leading outside the building. This necessarily meant that
addition of the left side exit did not amount to substantial
compliance with the OCR, 1953, declared the Court.
(i) That addition of seats and closure of the right side C
gangway were in violation of the statutory provisions and
severely compromised the need for quick dispersal in the
event of an emergency.
(1) A further development and another dimension to the 0
seating arrangement in the balcony came in the form of a
Notification dated 27th July, 1979, from the Lt. Governor
whereunder the relaxation in the number of seats provided to
Uphaar Cinema under the 1976 Notification was withdrawn. The
withdrawal, it appears, came as a consequence of a judgment E
delivered by the High Court of Delhi in a writ petition filed by
the cinema owners challenging the State's power to fix the price
of admission tickets to the theatre. The power to fix adrn\ission
rates to the cinema having thus been taken away, the Lt.
Governor appears to have withdrawn the relaxation in the
F
number of additional seats allowed to the cinema owners under
the 1976 Notification. This withdrawal was not acceptable to
the Ansals (A-1 and A-2) along with others who challenged the
same before the High Court of Delhi and obtained interim
directions in their favour. The High Court directed that such of G
the additional seats as comply substantially with the
requirements of the Rules may be allowed to stay while others
which infringed the Rules may have to be removed. A show-
cause notice was accordingly issued to Uphaar Cinema asking
it to remove all the 100 additional seats, which according to the
H
620 SUPREME COURT REPORTS [2014] 9 S.C.R.
A licensing authority were non-compliant with the requirement of
the relevant Rules. Gopal Ansal (A-2) opposed the removal of
these seats in the reply filed by him as Director of GPT Pvt.
ltd. stating that all the additional seats installed by them were
· .compliant with the Cinematograph Rules and requested the
B authorities to apply their minds to the direction of the High Court
regarding substantial compliance with the Rules.
(2) A fresh process of inspection of the Cinema was
therefore started, pursuant to the direction of the High Court
C and the show-cause notice. This inspection was conducted by
Mr. Amod Kanth, DCP (L), S.N. Dandona, Executive Engineer,
MCD (A-12) and the Chief Fire Officer and Executive Engineer,
all of whom had submitted a joint report Ex.PW29/DR. The
report, inter alia, stated that 37 of the 43 additional seats in
the balcony were substantially compliant with the Rules while
D 6 additional seats on the right side of the balcony were in gross
contravention of Paras 7(1) and 8(1) of the First Schedule to
OCR, 1953 as they were blocking vertical gangways and
causing obstruction to free egress of patrons from the balcony.
The said 6 seats were, therefore, required to be removed and
E the original number of vertical gangways restored. The result
was that 37 additional seats were allowed out of 43 to stay in
the balcony in terms of order dated 24th December, 1979
marked Ex. PW29/DR passed by Mr. Amod Kanth, DCP (L).
F (3) In his letter dated 29th July, 1980, Gopal Ansal (A-2),
Director of GPT wrote a letter Ex. PW110/AA7 to the DCP(L)
for installation of 15 additional seats in the balcony. Pursuant
to the said letter, the DCP (L) wrote a letter dated 20th August,
1980 (Ex. PW29/DS) to the Executive Engineer, requesting him
G to verify whether the proposed installation of 15 seats would
be compliant with the relevant provisions of the OCR, 1953 and
to submit a detailed report regarding the same. In his reply
dated 3rd September, 1980, Executive Engineer, S.N.
Dandona (A-12) stated that the proposed installation of seats
H was not in accordance with the scheme of the OCR, 1953.
SUSHIL ANSAL v. STATE THROUGH CBI 621
[T.S. THAKUR, J.]
Gopal Ansal (A-2), therefore, submitted a revised plan for the A
proposed additional seats vide letter dated 5th September,
1980 (Ex. PW29/DV). In his report Ex. PW29/DX dated 10th
September, 1980 S.N. Dandona (A-12) stated that the
additional 15 seats would be in conformity with OCR, 1953, but
raised a concern that the installation of the 15 additional seats B
would bring the total number of seats in the balcon'y to 302 while
the total number of exits would remain 3 in number. As per the
First Schedule of the OCR, 1953, the number of exits should
be 1 per 100 seats. This would imply that 2 additional seats in
the balcony would be in excess, unless a fourth exit was to be C
provided. Having said that, S.N. Dandona (A-12) excused this
excess on the grounds that it was decided in a meeting held in
October, 1979 in which the DCP(L) and Chief Fire Officer were
present that, keeping in view the High Court's orders for
substantial compliance, an excess of 1% in the number of seats D
over the required number of exits should be allowed. Pursuant
to S.N. Dandona's report, the DCP(L), Amod Kanth allowed the
installation of the 15 additional seats in the balcony on 4th
October, 1980. The result was that 15 additional seats were
installed as per the seating plan marked Ex. PW95/B4. The Trial E
Court further found that DCP(L), Amod Kanth, S.N. Dandona
(A-12), Chief Fire Officer and Executive Engineer were equally
responsible for not noticing the closure of the right side exit.
(4) The Trial Court found that the addition of seats as also F
closure of the right side exit because of installation of the family
box in that area, in the process blocking one vertical gangway,
narrowing of another and partial blocking of the third (new) exit
on the left side of the balcony were all in violation of the statutory
provisions and severely compromised the safety of the patrons G
visiting the cinema. The Trial Court also held that because of
the alterations in the seating plan on account of the addition of
seats and blocking of the right side exit, rapid dispersal of the
patrons in the event of an emergency was seriously jeopardized,
which amounted to gross negligence on the part of the owners H
622 SUPREME COURT REPORTS [2014] 9 S.C.R.
A and management of Uphaar Cinema, as well as those who
were responsible for sanctioning the changes.
(5) The Trial Court, in fact, went a step further and ordered
further investigation of the offence under Section 173(8) of the
8 CrPC vis-a-vis the persons left out by the CBI, particularly the
DCP(L), Amod Kanth against whom the Association of Victims
of Uphaar Tragedy had filed an application under Section 319
of the CrPC. The Trial Court held that the balcony seating plans
showed that the authorities responsible for the enforcement of
C the Rules as well as their subordinates who were to carry out
inspections were in connivance with the proprietors of the
cinema, Sushil and Gopal Ansal (A-1 and A-2) who acted in
connivance with each other with a view to making an unlawful
gain at the cost of the public.
D (j) That the owners of Uphaar Cinema who carried out the
. structural deviations, the officers of the MCD who granted
'No Objection' certificates for running the cinema hall for
the years 1995-96 and 1996-97 respectively despite the
structural deviations existing in the cinema building and
E the managers of Uphaar Cinema who turned a blind eye
to the said deviations and the threat to public safety
caused by them, were the direct cause of death of 59
persons and 100 injured in the cinema hall. The act of the
gatekeeper in fleeing from the cinema hall without
F unbolting the door of balcony was also found to be a
direct cause of the death of persons inside the balcony.
(1) As regards the unfolding of events in the balcony after
the smoke began to spread inside, the Trial Court relied upon
G the depositions of patrons seated in the balcony, PWs 1, 3, 7,
8, 11 & 12 who were fortunate to survive the ordeal, but all of
whom had lost in the tragedy some of their relatives who
accompanied them to the movie. The Trial Court also relied
upon the depositions of relatives of deceased patrons from the
H balcony, examined as PWs 4, 5, 6, 9, 10, 13 & 66, who were
SUSHIL ANSAL v. STATE THROUGH CBI 623
[T.S. THAKUR, J.]
not among those in the cinema hall themselves but who llad A
rushed to the scene upon learning about the disaster. The
deposition of the complainant Security Guard, Sudhir Kumar
(PW63) who first noticed the fire and helped in rescue
operations was also relied upon. Relying upon the above
evidence, the Trial Court arrived at the following conclusions: B
(i) Since the patrons were trapped inside the balcony
which was engulfed by the smoke, those who
succumbed died due to inhalation of smoke.
(ii) The patrons seated in the balcony were unable to c
save themselves in time since there were no proper
means of escape.
(iii) Though four exits were statutorily required in the
balcony, only three were provided. D
(iv) As previously held, the alterations made to the
balcony by the owners of Uphaar Cinema in
contravention of legal provisions became a
hindrance to egress into the open air for patrons in
the balcony, as a result of which the said patrons E
could not save themselves in time.
(v) Three exit doors were bolted. After becoming
aware of the fire in the building, the gatekeeper,
Manmohan Uniyal (A-8) fled the scene without F
unbolting the exit doors.
(vi) Since the doors had been bolted, one of the doors
had to be pushed open by the trapped patrons in
order to come out into open space. This endeavour
G
took 10-15 minutes, which resulted in a sufficient
amount of exposure to the toxic gases to cause the
death of the persons inhaling the same.
(vii) Moreover, since descending the staircase would
H
624 SUPREME COURT REPORTS [2014] 9 S.C.R
A only take the patrons into denser smoke, people
attempted to climb upwards towards the terrace.
However, their path was obstructed due to the
unauthorised construction of the commercial office
of M/s Sareen Associates on the landing of the
B staircase on the top floor, which created a
bottleneck and facilitated in causing the death of
more patrons. Moreover, one of the structural
deviations previously noted by the Trial Court was
the presence of a full width door on the right side
c of the stair case landing on the top floor, which
created an obstruction for going to the terrace.
(viii) It is revealed from the inspection reports that the
four exhaust fans which were to face an open space
instead opened out into the staircase.
D
(ix) As previously held, the existing structural deviations
in the building obstructed the egress of patrons into
open spaces and thereby directly contributed to
their deaths. These blatant structural deviations
E were never objected to by the MCD, a government
body which is responsible for ensuring compliance
with building plans.
(x) The eye-witnesses have unanimously deposed that
once they realized that smoke was entering the hall
F and a hue and cry was raised, no one from the
management of the cinema theatre was there to
help them escape. Instead, the managers fled the
scene without thought for the patrons.
G (xi) There were no fire alarms or emergency lighting, nor
was any public announcement made to warn the
patrons of the fire.
(xii) . As per the deposition of the Projector Operator,
Madhukar Bagde (PW85), an announcement
H
SUSHIL ANSAL v.. STATE THROU~H CBI 625
[T.S. THAKUR, J.]
system was present in the Projector Room but the A
same was out of order. He .depos~d th.at he had
previously informed K.L. Malhotra (A-4), since
deceased, to have the same rectified. This fact
was also verified in the report of PW64, Dr. Rajinder
Singh. B
(xiii) The managers being direc1)y responsible for the
daily functioning of the cinema failed in their duty
to ensure the safoty of the patrons seated inside.
They grossly nf!glected- their duties to take
measures to pre_vent fires and follow fire safety C
regulations, which caused the death of patrons
trapped inside.
(xiv) It is writ large that the failure of the owners and
management of Uphaar Cinema to adhere to D
provisions relating to fire safety caused the death/
injury of those who had gone to view the film in the
cinema.
(xv) The factors which constituted the direct and E
proximate cause of death of 59 persons and injury
of 100 persons in Upbaar cinema were the
installation of the DVB tr_ansformer in violation of
law, faulty repair of the DVB transformer, presence
of combustible· materiaC in the cinema building,
parking of cars near the transformer room, F
alterations in fhe balcony obstructing egress,
structural deviations resulting in closure of escape
routes in the b!Jilding at the time of the incident,
bolting of the exit doors from outside and the
absence of fire. fighting measures and two trained G
firemen, during the exhibition of the film in the
cinema building.
(k) That the cause of death of the 59 victims was asphyxia
H
626 SUPREME COURT REPORTS [2014] 9 S.C.R.
A caused by prolonged inhalation of smoke consisting of
carbon monoxide and other toxic gases.
( 1) On the basis of the result of the post-mortem
examination on the dead body of Captain M.S. Bhinder, the Trial
8 Court held that all the victims died on account of the very same
cause as was found to be responsible for the demise of Captain
Bhinder. Reliance was also placed by the Trial Court upon the
reports submitted by a Board of Medical Experts from AllMS
which proposed that the death of 59 victims of asphyxia was
C caused due to inhalation of smoke consisting of carbon
monoxide and other toxic gases. On the basis of the expert
opinion, the Court concluded that the cause of death of the
persons sitting in the balcony was due to inhalation of smoke.
The Court noted that the effect of gases is rapid as the fatal
D period for carbon monoxide with 10% concentration is within
20-30 minutes while the fatal period of hydrocyanic acid is 2-
20 minutes. The combustion of materials released such toxic
compounds, which in turn caused rapid death of the victims. The
Court also held that immediate well-organized intensive rescue
E operations could have saved many lives.
28. In conclusion and on the basis of the findings recorded
by it, the Trial Court convicted Sushil Ansal (A-1) and Gopal
Ansal (A-2) for commission of the offences punishable under
Sections 304A, 337 and 338 read with Section 36 of IPC and
F sentenced each one of them to undergo rigorous imprisonment
for a period of two years with a fine of Rs.5,000/- and a default
sentence of six months. They were also convicted under Section
14 of the Cinematograph Act, 1952 and sentenced to pay a fine .
of Rs.1,000/- or undergo two months imprisonment in default.
G All the sentences were directed to run concurrently. The Trial
Court further convicted S.S. Sharma (A-13) and N.D. Tiwari (A-
14) who were officials of the Municipal Corporation of Delhi
apart from H.S. Panwar (A-15), Divisional Officer, Delhi Fire
Service under the above provisions and sentenced them
H similarly to undergo two years rigorous imprisonment and a fine
SUSHIL-ANSAL v. STATE THROUGH CBI 627
[T.S. THAKUR, J.]
of Rs.5,000/- besides default sentence of six months A
imprisonment. In addition, the Trial Court found the charges
framed against the Managers of GPT, namely, R.K. Sharma (A-
5), N.S. Chopra (A-6) and Assistant Manager Ajit Choudhary
(A-7) as weir as gatekeeper Manmohan Uniyal (A-8) under
Section 304 read with Section 36 IPC proved and sentenced B
them to undergo rigorous imprisonment for a period of seven
years with a fine of Rs.5,000/- and a default sentence of six
months.
29. B.M. Satija (A-9) and AK. Gera (A-10) who happened c
to be DVB Inspectors at the relevant point of time and Bir Singh
(A-11) who happened to be DVB Senior Fitter were similarly
convicted uoder Section 304 read with Section 36 IPC and
sentenced to undergo seven years ri'gorous imprisonment
besides a fine of Rs.5,000/- and a default sentence of six D
months imprisonment. Proceedings against R.M. Puri (A-3),
Director of GPT and K.L. Malhotra (A-4) Deputy General
Manager, S.N. Dandona (A-12) Executive Engineer, PWD and
Surender Dutt (A-16) Station Officer, Delhi Fire Service, all of
whom died during the pendency of the trial, were held to have E
abated. Not only that, the Trial Court directed further
investigation into the matter under Section 173(8) Cr.P.C. in
regard to other persons including Amod Kanth DCP(L) for
allowing the cinema to function on temporary permits and for
not demanding the detailed inspection reports before issuing F
such permits.
Findings of the High Court:
30. Aggrieved by the judgment and order passed against
them, all the 12 accused persons convicted by the Trial Court G
preferred appeals before the Delhi High Court. The Association
of Victims of Uphaar Tragedy also filed a revision petition
challenging the judgment and order of the Trial Court to the
extent the same convicted the accused persons only for
offences punishable under Section 304A IPC instead of Section H
628 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 304, part 11 IPC. The High Court, as noticed in the beginning of
this order, disposed of the aforementioned appeal by a
common judgment dated 19th December, 2008 whereby the
High Court affirmed the findings of fact recorded by the Trial
Court. We may at this stage briefly refer to the said findings
B for the sake of clarity.
I Re: Ownership, Management and Control of Uphaar
Cinema:
(i) In para 9.68 of its judgment the High Court held that the
C ownership, management and control of Uphaar Cinema vested
with the Ansal brothers (A-1 and A-2) at all material times.
(ii) In para 9.62 of its judgment the High Court affirmed the ,.
findings recorded by the Trial Court and held that Ansal brothers
D (A-1 and A-2) were responsible for all major decisions in regard
to management and affairs of the Uphaar Cinema such as:
(a) The decision regarding installation of DVB
transformer within the cinema premises.
E (b) The decision relating to re-arrangement of
seating plan in the balcony which was in violation
of OCR, 1953 and OCR, 1981.
(c) The decision regarding closure of right side exit
F by installation of eight-seater family box.
(d) The decision regarding placement of additional
seats in the balcony.
(e) The grant of contracts for use of parking space.
G
(f) The exercise of unlimited financial powers on
behalf of the company and the power to create
encumbrances and charges over its assets.
H
SUSHIL ANSAL v. $TATE THROUGH CBI 629
[TS. THAKUR, J.]
(g) The decisiol'l relating to commercial use of the A
building.
(h) The decisions concerning day-to-day affairs of
the company.
B
(iii) In paras 9.63 and 9.64 the High Court held that the
Ansals (A-1 and A-2) were not only the Directors of the
company but had continued to be involved in its day-to-day
functioning even after they ceased·to be so.
(iv) The High Court further held that merely because the C
letter dated 6th March, 1997 had presented RM.Puri and K.L.
Malhotra (both since deceased) as authorised signatories of
the company for operating the cinema and for dealing with the
licensing authority did not mean that a specific nomination in
their favour was made in terms of Rule 10(2) of DCR, 1953 or D
the corresponding provision under OCR, 1981. The High Court
held that the shareholding pattern of the company revealed that
the major/predominant shareholding continued to remain with
the Ansal family and at no point of time was any outsider shown
to have held any of the 5000 shares issued by the company. E
(v) In para 9.67 of its judgment the High Court held that
from the deposition of those shown to be the Directors of the
company in the year 1996 to 19-97, it is evident that even
though they had attended certain meetings of the Board, they
F
were completely unaware of the vital aspec~ including the fact
that Uphaar Cinema was being run by Ansal Theatres and
Clubotels Pvt. Ltd. and whether they were in fact Directors or
empowered to act on behalf of the company.
II Re: DVB Transformer: G
(i) In para 7.4 the High Court held that the DVB transformer
had been installed against the provision of the Electricity Rules.
(ii) In paras 7.10 and 7.12 of its judgment the High Court
H
630 SUPREME COURT REPORTS [2014] 9 S.C.R.
A rejected the submission made on behalf of Sushi! Ansal (A-1)
and Gopal Ansal (A-2) that they were coerced in providing
space for the DVB transformer.
(iii) In paras 7.94, 7.95 and 7.96 of its judgment the High
B Court affirmed the findings recorded by the Trial Court that the
DVB transformer was in poor maintenance on the date of the
incident on account of the following:
(A) Protection relays which could have tripped off the
DVB transformer were missing.
c
(B) The LT side cables from the bus bar did not have
clamping system or support to the cables.
(C) The earth cable was in a twisted condition; and
D (0) The Buchholtz relay system was not fitted on the
transformer.
31. The High Court comprehensively dealt with the cause
of fire and affirmed the findings recorded by the Trial Court that
E the fire had started from the DVB transformer on account of the
improper repair carried out on the same without use of a
crimping machine because of which the LT cable had got
disconnected on the B-phase and an opening was created on
the radiator fin when the live cable fell upon it and caused a
F short circuit. The High Court summed up the cause of the fire
in paras 7.124 and 7.125 of its judgment.
32. The High Court held that the correspondence relating
to the installation of the DVB transformer did not suggest any
element of threat or use of force or economic power on the part
G of the DVB. On the contrary, the correspondence revealed an
anxiety on the part of cinema management to start its operation.
It also held in paras 7 .10 and 7 .11 of its judgment that the
Uphaar establishment was a beneficiary of the DVB transformer
since some parts of the building which were let out to tenants
H
SUSHIL ANSAL v. STATE THROUGH CBI 631
[T.S. THAKUR, J.]
of the establishment were receiving electricity supply from the A
said transformer.
Ill Re: Car Parking:
33. In para 7.17 of its judgment the High Court affirmed
the findings recorded by the Trial Court that the parking of extra 8
cars and the parking of cars close to the transformer room
blocking the 16 ft. wide passage which was meant to be kept
free for the movement of vehicles, aggravated the fire and
contributed to the incident. The High Court held that the owners
and the management of Uphaar Cinema had blatantly C
disregarded the requirements of law and the sanctioned plan
thereby putting the lives of its patrons at risk. The High Court
further held that Ansal brothers (A-1 and A-2) or the Managers
had not conveyed to the parking contractor the legal and safety
requirement of maintaining a safe distance between the D
vehicles and the transformer room while entering into a parking
contract in the year 1988 nor was the parking arrangement
subject to any kind of check. The outsourcing of the car parking
did not, observed the High Court, absolve the cinema
management which was thEfoccupier and owner of the E
premises of their duty to ensure that vehicles parked
immediately below the viewing area were maintained keeping
all safety standards in mind.
IV Re: Structural Deviations:
F
34. In paras 7.39 to 7.60 of its judgment the High Court
affirmed the findings recorded by the Trial Court that several
structural deviations apart from violation in the balcony had
been committed by the management of the cinema hall. The
High Court held that construction of refreshment counters on the G
first floor of the cinema hall inhibited free passage of the patrons
which was crucial in the event of an emergency and amounted
to violation of para 10(1) of the First Schedule of OCR, 1953
and were hence in breach of the provisions of Section 14 of
the Cinematograph Act and the licence issued thereunder. H
632 SUPREME COURT REPORTS (2014] 9 S.C.R.
A Similarly, the exhaust fans were so placed that they opened
into the hall of the front staircase instead of opening into an open
space. The structural deviations, according to the High Court,
assumed an incrementally risky character which the cinema
occupier was aware of. Similarly, the other violations referred
B to by the High Court including the storage and use of
combustible materials and closing of one of the exits, besides
shifting of the gangway contributed to violations that prevented
quick dispersal of the patrons from the balcony area thereby
culminating in the tragedy.
C V Re: Seating arrangement in the balcony:
35. The High Court dealt with blocking of the right side exit
by placing an 8-seater family box, addition of seats on the left
side of the balcony that prevented quick dispersal of the
D patrons, providing gangways which were less than the required
width and fixing of seats obstructing the left side (new) exit all
of which contributed to a situation from which the victims could
not escape to save their lives. The High Court further held that
blocking of the right side exit by the 8-seater box rendered
E ineffective the mandate of para 9(1), OCR, 1953 which required
that at least two stairways be provided for public use each not
less than 4 ft. wide. Each one of these deviations had,
according to the High Court, the effect of substantially
increasing the risk to a point where an emergency requiring
F rapid egress from the balcony area could not have been
effectively handled to save human lives.
36. The High Court also affirmed the findings of the Trial
Court on the following aspect and held that -
G (i) Patrons were exposed to smoke for a long time and
many were unable to leave the place swiftly.
(ii) Several eye witnesses haq deposed that the
balcony doors were bolted.
H
SUSHIL ANSAL v. STATE THROUGH CBI 633
[T.S. THAKUR, J.]
(iii) The entry/exit doors leading to the foyer had to be A
forced open.·
(iv) The gatekeeper, Manmohan Uniyal (A-8) who was
on duty at the time of the incident, had left his duty
without unbolting the doors.
B
(v) Absence of emergency lighting arrangements and
absence of help at the critical juncture exposed the
patrons to thick dense smoke for a long period that
hindered their movement and finally claimed many
lives. c
(vi) No public address system was in use nor were
there any emergency lights.
(vii) The cause of death was asphyxiation due to carbon
monoxide poisoning.
0
(viii) Many patrons who had managed to escape from the
balcony were trapped and had to break the open
windows to flee.
E
(ix) Eye witness accounts established the presence of
fire and hot smoke in the ground floor from 5.05 prn
to 6.20 p.m. and the presence of smoke in the
balcony even as late as 5.45 p.m. when the Chief
Fire Officer removed 3 persons from the balcony.
F
37. The High Court on the above findings upheld the
conviction of Sushi! Ansal (A-1) and Gopal Ansal (A-2). It also
upheld the conviction of H.S. Panwar (A-15) for offences
punishable under Sections 304A, 337 and 338 read with
Section 36 of the IPC but reduced the sentence awarded to G
them under Section 304A to one year rigorous imprisonment
without interfering with the fine imposed by the Trial Court. The
High Court also reduced the sentence awarded to the
aforementioned three appellants under Section 337 to three
months rigorous imprisonment and under Section 338 to one H \
634 SUPREME COURT REPORTS (2014] 9 S.C.R.
A year rigorous imprisonment with the direction that the sentences
shall run concurrently including the sentence awarded to Ansal
brothers (A-1 and A-2) under Section 14 of the Cinematograph
Act for which too the said two accused persons were convicted.
B 38. As regards the conviction of Manmohan Uniyal (A-8)
gatekeeper, B.M. Satija (A-9) DVB Inspector and Bir Singh (A-
11) Senior Fitter DVB, the High Court altered the same from
Section 304 Part II read with Section 36 IPC to Sections 304A
, 337 and 338 read with Section 36 IPC. The sentence awarded
to them· was accordingly reduced to two years rigorous
C imprisonment with a fine of Rs.2,000/- under Section 304A, 6
months rigorous imprisonment with a fine of Rs.500/- under
Section 337 and one year rigorous imprisonmenti,vith a fine
of Rs.1,000/- under Section 338 with a default sentence of four
months. The sentences were directed to run concurrently.
D
39. The remaining convicted persons, namely, R.K.
Sharma (A-5), since deceased, N.S. Chopra (A-6) as well as
AK. Gera (A-10) DVB Inspector, S.S. Sharma (A-13) and N.D.
Tiwari (A-14), MCD Officials were acquitted by the High Court
E and the revision petition filed by Association of Victims of
Uphaar Tragedy dismissed.
40. Appeals have been filed before us by all those
convicted and semenced to undergo imprisonment by the High
Court, except for the convicted gatekeeper, Manmohan Uniyal
F (A-8) who has served out the sentence awarded to him by the
Courts below. We also have before us Criminal Appeals
No.605-616 of 2010 filed by the CBI challenging the acquittal
recorded by the High Court in favour of the four persons
mentioned above. The Association of Victims of Uphaar
G Cinema has also filed Criminal Appeals No.600-602 of 2010
in which they have challenged the order of acquittal recorded
by the High Court and prayed for a retrial of the accused
persons for the offence punishable under Section 304 Part II
IPC.
H
SUSHIL ANSAL v. STATE THROUGH CBI 635
[T.S. THAKUR, J.]
41. We have heard learned counsel for the parties at A
considerable length, who were at pains to refer to the evidence
adduced at the trial to buttress their respective submissions.
Broadly stated the following questions arise for our
determination:
B
(I) Whether the concurrent findings of fact recorded by
the Courts below prove the commission of any rash
and/or negligent act by the accused persons or any
one of them within the meaning of Section 304A of
the IPC?
c
(II) Was the High Court justified in acquitting the
Respondents no.4 (N.S. Chopra), no.7 (A.K. Gera),
no.10 (S.S. Sharma) and no.11 (N.D. Tiwari)
respondent in Criminal Appeal No.605-616 of 2010
filed by the CBI? D
(Ill) Is there any basis for holding that the accused or
any one of them was guilty of an offence of culpable
homicide not amounting to murder punishable
under Section 304 Part II of the IPC so as to justify E
a retrial of the accused persons for the said
offence?
(IV) Whether the sentence awarded to those found guilty
by the High Court deserves to be enhanced?
F
(V) · What relief and/or general or specific directions
need be issued in the matter having regard to the
nature of the incident?
42. We propose to deal with the above questions ad G
seriatim.
Re: Question No.I:
43. Since this question has several facets to it, we propose
to deal with the same under the following sub-headings to H
636 SUPREME COURT REPORTS [2014] 9 S.C.R.
A ensure clarity and avoid any possible confusion or repetition:
(i) Scope of a criminal appeal by special leave
(ii) 'Rash' or 'Negligent' - Meaning of
B (iii) What constitutes negligence?
(iv) Difference between Negligence in civil actions and
that in criminal cases.
(v) The doctrine of causa causans.
c
(vi) Whether Ansal brothers were occupiers of Uphaar
Cinema building?
(vii) Degree and nature of care expected of an
occupier of a cinema building.
D
(viii) Whether the accused were negligent and if so,
whether the negligence was gross?
(ix) Contentions urged in defence and the findings
E thereon.
(i) Scope of a Criminal Appeal by Special Leave:
44. The scope of a criminal appeal by special leave filed
before this Court has been examined in several
F pronouncements of this Court over the past few decades. It is
unnecessary to burden this judgment by referring to all those
pronouncements, for a reference to only some of those
decisions should suffice. Among them the scope of an appeal
by special leave in a criminal matter was considered by a
G three-Judge Bench of this Court in Mst. Dalbir Kaur v. State
of Punjab (1976) 4 SCC 158 and the principle governing
interference by this Court in criminal appeals by special leave
summarized in the following words:
"8. Thus the principles governing interference by this
H
SUSHIL ANSAL v. STATE THROUGH CBI 637
[T.S. THAKUR, J.]
Court in a criminal appeal by special leave may be A
summarised as follows:
(1) that this Court would not interfere with
the concurrent finding of fact based on pure
appreciation of evidence even if it were to take a 8
different view on the evidence;
(2) that the Court will not normally enter into a
reappraisement or review of the evidence, unless
the assessment of the High Court is vitiated by an
error of law or procedure or is based on error of C
record, misreading of evidence or is inconsistent
with the evidence, for instance, where the ocular
evidence is totally inconsistent with the medical
evidence and so on;
D
(3) that the Court would not enter into credibility of
the evidence with a view to substitute its own
opinion for that of the High Court;
(4) that the Court would interfere where the High
Court has arrived at a finding of fact in disregard E
of a judicial process, principles of natural justice
or a fair hearing or has acted in violation of a
mandatory provision of law or procedure resulting
in serious prejudice or injustice to the accused;
F
(5) this Court might also interfere where on the
proved facts wrong inferences of law have been
drawn or where the conclusions of the High Court
are manifestly perverse and based on no
evidence: It is very difficult to lay down a rule of G
universal application but the principles mentioned
above and those adumbrated in the authorities of
this Court cited supra provide sufficient guidelines
for this Court to decide criminal appeals by special
leave. Thus in a criminal appeal by special leave,
H
638 SUPREME COURT REPORTS [2014] 9 S.C.R.
A this Court at the hearing examines the evidence
and the judgment of the High Court with the limited
purpose of determining whether or not the High
Court has followed the principles enunciated
above. Where the Court finds that the fjigh Court
B has committed no violation of the various
principles laid down by this Court and has made
a correct approach and has not ignored or
overlooked striking features in· the evidence which
demolish the prosecution case, the findings
c of fact arrived at by the Higtr Court on an
appreciation of the evidence in the circumstances
of the case would not be disturbed."
45. In Radha Mohan Singh @ Lal Sahib and Ors. v. State
of UP. (2006) 2 SCC 450, this Court declared that it will not
D normally enter into reappraisal or review of evidence in an
appeal under Article 136 of the Constitution unless the Trial
Court or the High Court is shown to have committed an error
of law or procedure and the conclusions arrived at are found
to be perverse. To the same effect is the decision of this Court
E in Raj Narain Singh v. State of UP. and Ors. (2009) 10 SCC
362, where this Court held that the scope of appeal under
Article 136 of the Constitution was very limited and that this
Court does not exercise overriding powers under the said
provision to reweigh the evidence and disturb the concurrent
F findings of fact reached upon proper appreciation. We may also
refer to the decision of this Court in Surendra Pal and Ors. v.
State of UP. and Anr. (2010) 9 SCC 399 where this Court held
that it could not embark upon a re-appreciation of the evidence
when both the Sessions Court and the High Court had agreed
G in their appreciation of the evidence and arrived at concurrent
findings of fact. This Court cautioned that it was necessary to
bear in mind the limited scope of the proceedings under Article
136 of the Constitution which cannot be converted into a third
appeal on facts and that mere errors are not enough to attract
H this Court's invigilatory jurisdiction. A similar view was
SUSHIL ANSAL v. STATE THROUGH CBI 639
[T.S. THAKUR, J.]
expressed by this Court in Amitava Banerjee v. State of West A
Bengal (2011) 12 SCC 554 and Mohd. Arif v. State (NCT) of
Delhi, (2011) 13 sec 621 to which decisions one of .us
(Thakur, J.) was a party.
46. Suffice it to say that this Court is not an ordinary Court
8
of appea·I obliged to reappraise the evidence and record its
conclusion. The jurisdiction to interfere under Article 136 is
extraordinary and the power vested in this Court is not
exercised to upset concurrent findings of fact recorded by the
two Courts below on a proper appreciation of evidence. It is
only in those rare and exceptional cases where the appreciation C
of evidence is found to be wholly unsatisfactory or the copclusion
drawn from the same perverse in nature, causing miscarriage
of justice that this Court may correct the course of justice and
undo the wrong. Perversity in the findings, illegality or irregularity
in the trial that results in injustice or failure to take into D
consideration an important piece of evidence are some of the
situations in which this Court may reappraise the evidence
adduced at the trial but not otherwise. The scope of interference
with the findings of fact concurrently found by the Trial Court and
the First Appellate Court is thus permissible as a rarity only in E
the situations enumerated above and not as a matter of course
or for mere asking.
(ii) 'Rash' or 'Negligent' - Meaning of:
47. Section 304A of the IPC makes any act causing death F
by a rash or negligent act not amounting to culpable homicide,
punishable with imprisonment of either description for a term
which may extend to two years or with fine or with both. It reads:
"304A. Causing death by negligence.- Whoever G
causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide shall
be punished with imprisonment of either description for
a term which may extend to two years, or with fine, or with
both." H
640 SUPREME· COURT REPORTS [2014] 9 S.C.R.
A 48. The terms 'rash' or 'negligent' appearing in Section
304A extracted above have not been defined in the Code.
Judicial pronouncements have all the same given a meaning
which has been Jong accepted as the true purport of the two
expressions appearing in the provisions. One of the earliest of
B these pronouncements was in Empress of India v. /du Beg ILR
(1881) 3 All 776, where Straight J. explained that in the case
of a rash act, the criminality lies in running the risk of doing an
act with re.cklessness or indifference as to consequences. A
similar meaning was given to the term 'rash' by the High Court
c of Madras in In Re: Nidamarti Negaghushanam 7 Mad HCR
119, where the Court held that culpable rashness meant acting
witl:! the consciousness that a mischievous and illegal
consequence may follow, but hoping that it will not. Culpability
in the case of rashness arises out of the person concerned
acting despite the consciousness. These meanings given to the
0
exp1ession 'rash', have broadly met the approval of this Court
also as is evident from a conspectus of decisions delivered
from time to time, to which we shall presently advert. But before
we do so, we may refer to the following passage from "A
Textbook of Jurisprudence" by George Whitecross Paton
E reliance whereupon was placed by Mr. Jethmalani in support
of his submission. Rashness according to Paton means "where
the actor foresees possible consequences, but foolishly thinks
they will not occur as a result of his acf'.
F 49. In the case of 'negligence' the Courts have favoured a
meaning which implies a gross and culpable neglect or failure
to exercise that reasonable and proper care and precaution to
guard against injury either to the public generally or to an
individual which having regard to all the circumstances out of
G which the charge arises, it may be the imperative duty of the
accused to have adopted. Negligence has been understood to
be an omission to do something which a reasonable man
guided upon those considerations which ordinarily regulate the
conduct of human affairs, would do, or doing something which
H a prudent and reasonable person would not do. Unlike
SUSHIL ANSAL v. STATE THROUGH CBI 641
(T.S. THAKUR, J.]
rashness, where the imputability arises from acting despite the A
consciousness, negligence implies acting without such
consciousness, but in circumstances which show that the actor
has not exercised the caution incumbent upon him. The
imputability in the case of negligence arises from the neglect
of the civil duty of circumspection. B
(iii) What constitutes Negligence?:
50. The expression 'negligence' has also not been defined
in the Penal Code, but, that has not deterred the Courts from
giving what has been widely acknowledged as a reasonably C
acceptable meaning to the term. We may before referring to
the judicial pronouncements on the subject refer to the
dictionary meaning of the term 'negligence'.
51. ·Black's Law Dictionary defines negligence as under: o
"The failure to exercise the standard of care that a
reasonably prudent person would have exercised in a
similar situation; any conduct that falls below the legal
standard established to protect others against
unreasonable risk of harm, except for conduct that is E
intentionally, wantonly, or willfully disregardful of other's
rights."
52. Charlesworth and Percy on Negligence (Twelfth
Edition) gives three meanings to negligence in forensic speech F
viz: (i) in referring to a state of mind, when it is distinguished in
particular from intention; (ii) in describing conduct of a careless
type; and (iii) as the breach of a duty to take care imposed by
either common law or statute. The three meanings are then
explained thus: G
"The first meaning: Negligence as a state of mind can be
contrasted with intention. An act is intentional when it is
purposeful and done with the desire or object of producing
a particular result. In contrast, negligence in the present
sense arises where someone either fails to consider a H
642 SUPREME COURT REPORTS [2014] 9 S.C.R.
A risk of particular action, or having considered it, fails to
give the risk appropriate weight.
The second meaning: Negligence can also be used as a
way to characterize conduct, although such a use may
lead to imprecision when considering negligence as a
B
tort. Careless conduct does not necessarily give rise to
breach of a duty of care, the defining characteristic of the
tort of negligence. The extent of a duty of care and the
standard of care required in performance of that duty are
both relevant in considering whether, on any given facts
c conduct which can be characterized as careless, is
actionable in law.
"The third meaning: The third meaning of negligence, and
the one with which this volume is principally concerned,
D is conduct which, objectively considered, amounts to
breach of a duty to take care".
53. Clerk & Lindsel/ on Torts (Eighteenth Edition) sets out
the following four separate requirements of the tort of .
negligence:
E
"(1) the existence in law of a duty of care situation, i.e. one
in which the law attaches liability to carelessness. There
has to be recognition by law that the careless infliction of
the kind of damages in suit on the class of person to which
F the claimant belongs by the class of person to which the
defendant belongs is actionable;
(2) breach of the duty of care by the defendant, i.e., that it
failed to measure up to the standard set by law;
G (3) a casual connection between the defendant's careless
conduct and the damage;
(4) that the particular kind of damage to the particular
claimant is not so unforeseeable as to be too remote."
H
SUSHIL ANSAL v. STATE THROUGH CBI 643
[T.S. THAKUR, J.]
54. Law of Torts by Rattan/a/ & Dhiraj/al, explains A
negligence in the following words:
"Negligence is the breach of a duty caused by the
omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate 8
the conduct of human affairs would do, or doing
something which a prudent and reasonable man would
not do. Actionable negligence consists in the neglect of
the use of ordinary care or skill towards a person to whom
the defendant owes the duty of observing ordinary care C
and skill, by which neglect the plaintiff has suffered injury
to his person or property. According to Winfield,
"negligence as a tort is the breach of a legal duty to take
care which results in damage, undesired by the defendant
to the p/ainliff'. The definition involves three constituents
of negligence: (1) A legal duty to exercise due care on D
the part of the party complained of towards the party
complaining the farmer's conduct within the scope of the
duty; (2) Breach of the said duty; and (3) consequential
damage. Cause of action for negligence arises only when
damage occurs for damage is a necessary ingredient of E
this tort. But as damage may occur before it is
discovered; it is the occurrence of damage which is the
starting point of the cause of action.
55. The above was approved by this Court in Jacob F
Mathew v. State of Punjab and Another (2005) 6 SCC 1.
56. The duty to care in cases whether civil or criminal
including injury arising out of use of buildings is examined by
courts, vis-a-vis occupiers of such bindings. In Palsgraf v. Long
Island Railroad, 248 NY 339, Justice Cardozo explained the G
orbit of the duty of care of an occupier as under:
"If no hazard was apparent to the eye of ordinary vigilance,
an act innocent and harmless, at least to outward
seeming with reference to her, did not take to itself the H
644 SUPREME COURT REPORTS (2014] 9 S.C.R.
A quality of a tort because it happened to be a wrong,
though apparently not one involving the risk of bodily
insecurity, with reference to someone else ... Even then,
the orbit of the danger as disclosed to the eye of
reasonable vigilance would be the orbit of the duty."
B
57. To the same effect is the decision in Hartwell v.
Grayson Rollo and Clover Docks Limited and Others (1947)
KB 901 where the duty of an occupier who invites people to a
premises, to take reasonable care that the place does not
C contain any danger or to inform those coming to the premises
of the hidden dangers, if any, was explained thus:
"In my opinion the true view is that when a person invites
another to a place where they both have business, the
invitation creates a duty on the part of the invitor to take
D reasonable care that the place does not contain or to give
warning of hidden dangers, no matter whether the place
belongs to the invitor or is in his exclusive occupation."
58. The duty of a theatre owner to his patrons was outlined
E as follows in Rosston v. Sullivan, 278 Mass 31 (1932):
"The general duty to use ordinary care and diligence to
put and keep this theatre in a reasonably safe condition,
having regard to the construction of the place, character
of the entertainment given and the customary conduct of
F persons attending."
59. The above case was cited with approval in Helen
Upham v. Chateau De Ville Theatre Inc 380 Mass 350 (1980).
60. The Supreme Court of Wyoming in Mostert v. CBL &
G Associates, et. Al., 741 P.2d 1090 (Wyo. 1987) held that the
owner of a theatre, AMC owed an affirmative duty to patrons
as "business visitor invitees" to inform them of off-premises
dangers (in that case a flash flood) which were reasonably
foreseeable:
H
SUSHIL ANSAL v. STATE THROUGH CBI 645
[T.S. THAKUR, J.]
"We conclude that appellee AMC owed the Mostert A
family an affirmative duty to exercise reasonable or
ordinary care for their safety which includes an obligation
to advise them of off-premises danger that might
reasonably be foreseeable. We are not suggesting by our
determination that AMC had a duty to restrain its patrons B
or even a duty to advise them what to do. The duty as
we see it is only to reveal what AMC knew to its
customers."
61. In Brown v. B & F Theatres Ltd., (1947) S.C.R. 486,
the Supreme Court of Canada held the liability of a theatre C
owner to be 90% and the contributory negligence of the
appellant to be 10% in a case with the following facts:
"The appellant, Margaret Brown, was injured by falling
doWn a stairway in a theatre in Toronto. After passing D
through a brightly lighted lobby, she entered the foyer,
intending to go to the ladies' room. This was on the left
of the entrance and was indicated by a short electric sign
7' high facing her as she turned. In the foyer, a narrow
corridor, the lights were dimmed; and, proceeding along E
the wall at her left, she opened what she took to be the
door to the waiting room. A fire extinguisher 2' long and
4' from the floor hung on the wall next to the left side of
the door,· and at the right side was a post or panel 7" wide,
projecting about 4" out from the wall; the door, 31" wide, F
swinging toward the left, on which the word "Private" was
printed in faint letters, was between three and four feet in
front of the sign and led to a stairway into the basement.
The platform or landing was about 24" deep and the door
must have swung somewhat before the edge would be G
brought into view. Immediately inside on the wall at the
right and on a level with her eyes, was a light which, on
her story, momentarily blinded her. The entrance to the
ladies' room was separated from this door by the post or
panel."
H
646 SUPREME COURT REPORTS [2014) 9 S.C.R.
A 62. Holding that the theatre owner had breached the duty
owed by a proprietor of premises to his invitee, the Court held
as follows:
"Here, Mrs. Brown paid a consideration for the privileges
of the theatre, including that of making use of the ladies'
B
room. There was a contractual relation between her and
the theatre management that exercising prudence herself
she might enjoy those privileges without risk of danger
so far as reasonable care could make the premises safe."
c (emphasis supplied)
63. In Dabwali Fire Tragedy Victims Association v. Union
of India and Ors., (2001) 1 ILR Punjab & Haryana 368 to which
one of us (Thakur J.) was a party, the High Court of Punjab &
D Haryana held that both the school, as well as the owners of a
premises on which the school function was held, were liable as
occupiers for the tragic death of 406 persons, most of them
children, caused by a fire which broke out on the premises
during the function. In dealing with the question whether the
owners of the premises, Rajiv Marriage Palace, being agents
E
of the school could be held accountable, the High Court held
as follows:
".. The School ought to have known that in a function which
is open to general public, a Panda/ with a capacity of 500
F to 600 persons spread over no more than an area
measuring 100' x 70', a gathering of 1200 to 1500
persons could result in a stampede and expose to harm
everyone participating in the function especially the
children who were otherwise incapable of taking care of
G their safety. The school ought to have known that the
availability of only one exit gate from the Marriage
Palace and one from the Panda/ would prove insufficient
in the event ofany untoward incident taking place in the
course of function. The School ought to have taken care
H to restrict the number of. invitees to what could be
SUSHIL ANSAL v. STATE THROUGH CBI 647
[T.S. THAKUR, J.]
reasonably accommodated instead of allowing all and A
sundry to attend and in the process increase the chances
of a stampede. The School ought to have seen that
sufficient circulation space in and around the seating
area was provided so that the people could quickly move
out of the place in case the need so arose. Suffice it to B
say that a reasonably prudent School Management
organizing an annual function could and indeed was duty
bound to take care and ensure that no harm came to
anyone who attended the function whether as an invitee
or otherwise, by taking appropriate steps to provide for c
safety measures like fire fighting arrangements, exit
points, space for circulation, crowd control and the like.
And that obligation remained unmitigated regardless
whether the function was held within the School premises
or at another place chosen by the Management of the 0
School, because the children continued to be under the
care of the School and so did the obligation of the School
to prevent any harm coming to them. The principle of
proximity creating an obligation for the School qua its
students and invitees to the function would make the E
School liable for any negligence in either the choice of
the venue of the function or the degree of care that ought
to have been taken to prevent any harm coming to those
who had come to watch and/or participate in the event.
Even the test of foreseeability of the harm must be held F
to have been satisfied from the point of view of an
ordinary and reasonably prudent person. That is because
a reasonably prudent person could foresee danger to
those attending a function in a place big enough to
accommodate only 500 to 600 people but stretched
beyond its capacity to accommodate double that number. G
It could also be foreseen that there was hardly any space
for circulation within the Panda/. In the event of any
mishap, a stampede was inevitable in which women and
children who were attending in large number would be
worst sufferers as indeed they turned out to be. Loose H
648 SUPREME COURT REPORTS (2014] 9 S.C.R.
A electric connections, crude lighting arrangements and an
electric load heavier than what the entire system was
geared to fake was a recipe for a human tragedy to occur.
Absence of any fire extinguishing arrangements within
the Panda/ and a single exit from the Panda/ hardly
B enough for the people to run out in the event of fire could
have put any prudent person handling such an event to
serious thought about the safety of those attending the
functioning especially the small children who had been
brought to the venue in large numbers ... "
c 64. Referring to the English decisions in Wheat v. E. Lacon
& Co. (1966) 1 All ER 582, Hartwell v. Grayson Rollo (supra),
Thomson v. Cremin (1953) 2 All ER 1185 and H & N
Emanuel Ltd. v. Greater London Council & Anr. (1971) 2 All
ER 835, the High Court went on to hold as follows:
D
"93. In the instant case while the School had the absolute
right to restrict the entry to the venue of the function being
org.anized by it and everything that would make the
function go as per its requirements, the owners had not
E completely given up their control over the premises, and
were indeed present at the time the incident occurred.
The facts and circumstances brought on record in the
course of the enquiry establish that the School and the
Marriage Palace owners were both occupying the
F premises and were, therefore, under an obligation to take
care for the safety of not only the students, but everyone
who entered the premises on their invitation or with their
permission specific or implied. As to the obligation of an
occupier to take care qua his invitees a long line of
English decisions have settled the legal position ...
G
xx xx xx
97. In the light of the above, we have no hesitation in
holding that the One Man Commission of Inquiry was
H perfectly justified in holding the School and the Marriage
SUSHIL ANSAL v. STATE THROUGH CBI 649
[T.S. THAKUR, J.]
Palace liable for the act of tort arising out of their A
negligence and duty to take care about the safety of all
those invited to the function at Dabwali. Question No. 2
is answered accordingly. "
65. In R. v. Gurphal Singh [1999] Crim LR 582, the Court
of Appeal in England dealt with a case where a person staying
at a lodging house occupied and managed by the Singh family
died in his sleep due to carbon monoxide poisoning. The
cause of the carbon monoxide was the blocking of the chimney
in the room of the lodger, as well as in the neighbouring room C
due to which the smoke from a fire in the room could not
escape. While determining whether the Singh family had
breached their duty of care, the Court held as follows:
"... In substance this is a case where those living in the
room in which Mr. Foster died in a lodging house D
managed by Singh family. They were led to believe that
the appellant and his father would take care that they were
not poisoned by equipments provided by the family. The
appellant was possessed of sufficient information to
make him aware of a danger of death from gas. He may E
not have had sufficient skill to be able to discover how
that danger arose but he was responsible for taking
reasonable steps to deal with that danger if need by
calling in expert help. In those circumstances the judge
was right to hold that there was a sufficient proximity F
between the lodgers on the one side and the father and
son on the other side to place a duty of care on the latter."
66. To sum up, negligence signifies the breach of a duty
to do something which a reasonably prudent man would under
the circumstances have done or doing something which when G
judged from reasonably prudent standards should not have
been done. The essence of negligence whether arising from
an act of commission or omission lies in neglect of care
towards a person to whom the defendant or the accused as
the case may be owes a duty of care to prevent damage or H
650 SUPREME COURT REPORTS [2014] 9 S.C.R.
A injury to the property or the person of the victim. The existence
of a duty to care is thus the first and most fundamental of
ingredients in any civil or criminal action brought on the basis
of negligence, breach of such duty and consequences flowing
from the same being the other two. It follows that in any forensic
B
•
exercise aimed at finding out whether there was any negligence
on the part of the defendanUaccused, the Courts will have to
address the above three aspects to find a correct answer to
the charge.
C (iv) Difference between negligence in civil actions and in
criminal cases:
67. Conceptually the basis for negligence in civil law is
different from that in criminal law, only in the degree of
negligence required to be proved in a criminal action than what
D is required to be proved by the plaintiff in a civil action for
recovery of damages. For an act of negligence to be culpable
in criminal law, the degree of such negligence must be higher
than what is sufficient to prove a case of negligence in a civil
action. Judicial pronouncements have repeatedly declared that
E in order to constitute an offence, negligence must be gross in
nature. That proposition was argued by Mr. Ram Jethmalani at
great length relying upon English decisions apart from those
from this Court and the High Courts in the country. In fairness
to Mr. Salve, counsel appearing for the CBI and Mr. Tulsi
F appearing for the Association of Victims, we must mention that
the legal proposition propounded by Mr. Jethmalani was not
disputed and in our opinion rightly so. That negligence can
constitute an offence punishable under Section 304A of the IPC
only if the same is proved to be gross, no matter the word
G "gross" has not been used by the Parliament in that provision
is the settled legal position. It is, therefore, unnecessary for us
to trace the development of law on the subject, except making
a brief reference to a few notable decisions which were
referred to at the bar.
H 68. One of the earliest decisions which examined the
SUSHIL ANSAL v. STATE THROUGH CBI 651
[T.S. THAKUR, J.]
question of criminal negligence in England was R. v. Bateman A
(1925) 94 L.J.K.B. 791 where a doctor was prosecuted for
negligence resulting in the death of his patient. Lord Hewart
L.C.J. summed up the test to be applied in such cases in the
following words:
B
"A .doctor is not criminally responsible for a patient's
death unless his negligence or incompetence passed
beyond a mere matter of compensation and showed such
disregard for life and safety as to amount to a crime
against the State."
c
69. Nearly two decades later the Privy Council in John Oni
Akerele v. The King AIR 1943 PC 72 found itself confronted
by a similar question arising out of the alleged medical
negligence by a doctor who was treating patients for an
endemic disease known as "Yaws" which attacks both adults D
and children causing lesions on the body of the patient.
Following the treatment, 10 children whom the accused had
treated died allegedly because the injection given to the
patients was too strong resulting in an exceptional reaction
among the victims. The allegation against the doctor was that E
he had negligently prepared too strong a mixture and thereby
was guilty of manslaughter on account of criminal negligence.
Relying upon Lord Hewart's L.C.J. observations extracted
above, the Privy Council held:
"11. Both statements are true and perhaps cannot safely F
be made more definite, but it must be remembered that
the degree of negligence required is that it should be
gross, and that neither a jury nor a Court can transform
negligence of a lesser degree into gross negligence
merely by giving it that appellation. The further words G
spoken by the Lord Chief Justice in the same case are,
in their Lordships' opinion, at least as important as those
which have been set out:
H
652 SUPREME COURT REPORTS [2014] 9 S.C.R.
A It is desirable that, as far as possible, the explanation of
criminal negligence to a jury should not be a mere
question of epithets. It is, in a sense, a question of degree,
and it is for the jury to draw the line, but there is a
difference in kind between the negligence which gives a
B right to compensation and the negligence which is a
crime."
70. What is important is that the Privy Council clearly
recognized the difficulty besetting any attempt to define
culpable or criminal negligence and held that it was not possible
C to make the distinction between actionable and criminal
negligence intelligible, except by means of illustrations drawn
from actual judicial opinions. On the facts of that case the Privy
Council accepted the view that merely because a number of
persons had taken gravely ill after receiving an injection from
D the accused, a criminal degree of negligence was not proved.
71. In Jacob Mathew's case (supra) a three-Judge Bench
of this Court was examining a case of criminal medical
negligence by a doctor under Section 304A IPC. This Court
E reviewed the decisions on the subject including the decision
of the Privy Council in John Oni Akerele's case (supra) to sum
up its conclusions in para 48. For the case at hand conclusions
5 and 6 bear relevance which may, therefore, be extracted:
"48. We sum up our conclusions as under:
F
)()()( )()()( )()()(
(5) The jurisprudential concept of negligence differs in civil
and criminal law. What may be negligence in civil law may
G not necessarily be negligence in criminal law. For
negligence to amount to an offence, the element of mens
rea must be shown to exist. For an act to amount to criminal
negligence, the degree of negligence should be much
higher i.e. gross or of a very high degree. Negligence
which is neither gross nor of a higher degree may provide
H
SUSHIL ANSAL v. STATE THROUGH CBI 653
[T.S. THAKUR, J.]
a ground for action in civil law but cannot form the basis A
for prosecution.
(6) The word "gross" has not been used in Section
304-A IPC, yet it is settled that in criminal law negligence
or recklessness, to be so held, must be of such a high 8
degree as to be "gross". The expression "rash or negligent
act" as occurring in Section 304-A IPC has to be read as
qualified by the word "grossly"."
72. The legal position in England remains the same as
stated in R. v. Bateman (supra). That is evident from a much C
later decision of the House of Lords in R. v. Adomako (1994)
3 All ER 79 where the legal principle of negligence in cases
involving manslaughter by criminal negligence were summed
up in the following words:
D
"... In my opinion the law as stated in these two authorities
is satisfactory as providing a proper basis for describing
the crime of involuntary manslaughter. Since the decision
in Andrews v. OPP (1937) 2 All ER 552, was a decision
of your Lordships' House, it remains the most E
authoritative statement of the present law which I have
been able to find and although its relationship to R. v.
Seymour (1983) 2 ALL ER 1058 is a matter to which I
shall have to return, it is a decision which has not been
departed from. On this basis in my opinion th._e ordinary
F
principles of the law of negligence apply to ascertain
whether or not the defendant has been in breach of a
duty of care towards the victim who has died. If such
breach of duty is established the next question is whether
that breach of duty caused the death of the victim. If so,
the jury must go on to consider whether that breach of G
duty should be characterised as gross negligence and
therefore as a crime. This will depend on the seriousness
of the breach of duty committed by the defendant in all
the circumstances in which the defendant was placed
when it occurred. The jury will have to consider whether H
654 SUPREME COURT REPORTS [2014] 9 S.C.R.
A the extent to which the defendant's conduct departed from
the proper standard of care incumbent upon him,
involving as it must have done a risk of death to the
patient, was such that it should be judged criminal.
It is true that to a certain extent this involves an
B
element of circularity, but in this branch of the law I do
not believe that is fatal to its being correct as a test of
how far conduct must depart from accepted standards to
be characterised as criminal. This is necessarily a
question of degree and an attempt to specify that degree
c more closely is I think likely to achieve only a spurious
precision. The essence of the matter, which is supremely
a jury question, is whether, having regard to the risk of
death involved, the conduct of the defendant was so bad
in all the circumstances as to amount in their judgment
D to a criminal act or omission... "
73. There is no gainsaying that negligence in order to
provide a cause of action to the affected party to sue for
damages is different from negligence which the prosecution
E would be required to prove in order to establish a charge of
'involuntary manslaughter' in England, analogous to what is
punishable under Section 304A, IPC in India. In the latter case
it is imperative for the prosecution to establish that the
negligence with which the accused is charged is 'gross' in
F nature no matter Section 304A, IPC does not use that
expression. What is 'gross' would depend upon the fact
situation in each case and cannot, therefore, be defined with
certitude. Decided cases alone can illustrate what has been
considered to be gross negligence in a given situation.
G 74. We propose to revert to the subject at an appropriate
stage and refer to some of the decided cases in which this Court
had an occasion to examine whether the negligence alleged
against the accused was gross, so as to constitute an offence
under Section 304A of the IPC.
H
SUSHIL ANSAL v. STATE THROUGH CBI 655
[T.S. THAKUR, J.]
(V) Doctrine of Causa Causans: A
75. We may now advert to the second and an equally, if
not, more important dimension of the offence punishable under
Section 304-A IPC, viz. that the act of the accused must be the
proximate, immediate or efficient cause of the death of the
B
victim without the intervention of any other person's negligence.
This aspect of the legal requirement is also settled by a long
line of decisions of Courts in this country. We may at the outset
refer to a Division Bench decision of the High Court of Bombay
in Emperor v. Omkar Rampratap (1902) 4 Born LR 679 where
Sir Lawrence Jenkins speaking for the Court summed up the C
legal position in the following words:
" ... to impose criminal liability under Section 304-
A, Indian Penal Code, it is necessary that the act should
have been the direct result ofa rash and negligent act D
of the accused and that act must be proximate and
efficient cause without the intervention of another
negligence. It must have been the causa causans; it is
not enough that it may have been the causa sine qua
non." E
76. The above statement of law was accepted by this Court
in Kurban Hussein Mohameda/li Rangawa/la v. State of
Maharashtra AIR 1965 SC 1616. We shall refer to the facts of
this case a little later especially because Mr. Jethmalani,
learned Counsel for the appellant-Sushi! Ansal, placed heavy
F
reliance upon the view this Court has taken in the fact situation
of that case.
77. Suffice it to say that this Court has in Kurban Hussein's
case (supra) accepted in unequivocal terms the correctness of G
the proposition that criminal liability under Section 304-A of the
IPC shall arise only if the prosecution proves that the death of
the victim was the result of a rash or negligent act of the accused
and that such act was the proximate and efficient cause without
the intervention of another person's negligence. A subsequent H
656 SUPREME COURT REPORTS (2014] 9 S.C.R.
A decision of this Court in Suleman Rahiman Mulani v. State
of Maharashtra AIR 1968 SC 829 has once again approved
the view taken in Omkar Rampratap's case (supra) that the act
of the accused must be proved to be the causa causans and
not simply a causa sine qua non for the death of the victim in
B a case under Section 304-A of the IPC.
78. To the same effect are the decisions of this Court in
Rustom Sherior Irani v. State of Maharashtra 1969 ACJ 70;
Ba/chandra @ Bapu and Anr. v. State of Maharashtra AIR
C 1968 SC 1319; Kishan Chand v. State of Haryana (1970) 3
SCC 904; S.N Hussain v. State of A.P. (1972) 3 SCC 18;
Ambalal D. Bhatt v. State of Gujarat (1972) 3 SCC 525 and
Jacob Mathew's case (supra).
79. To sum up: for an offence under Section 304-A to be
D proved it is not only necessary to establish that the accused
was either rash or grossly negligent but also that such rashness
or gross negligence was the causa causans that resulted in
the death of the victim. As to what is meant by causa causans
we may gainfully refer to Black's Law Dictionary (Fifth Edition)
E which defines that expression as under:
"The immediate cause; the last link in the chain of
causation."
80. The Advance Law Lexicon edited by Justice
F Chandrachud, former Chief Justice of India defines Causa
Causans as follows:
"the immediate cause as opposed to a remote cause; the
'last link in the chain of causation'; the real effective cause
G of damage"
81. The expression "proximate cause" is defined in the 5th
edition of Black's Law Dictionary as under:
"That which in a natural and continuous sequence
H unbroken by any efficient, intervening cause, produces
SUSHIL ANSAL v. STATE THROUGH CBI 657
[T.S. THAKUR, J.]
injury and without which the result would not have A
occurred. Wisniewski vs. Great Atlantic & Pac. Tea
Company 226 Pa. Super 574, 323 A2d, 744, 748. That
which is nearest in the order of responsible causation.
That which stands next in causation to the effect, not
necessarily in time or space but in causal relation. The B
proximate cause of an injury is the primary or moving
cause, or that which in a natural and continuous
sequence, unbroken by any efficient intervening cause,
produces the injury and without which the accident could
not have happened, if the injury be one which might be c
reasonably anticipated or foreseen as a natural
consequence of the wrongful act. An injury or damage is
proximately caused by an act, or a failure to act,
whenever it appears from the evidence in the case, tha{
the act or omission played a substantial part in bringing 0
about or actually causing the injury or damage; and that
the injury or damage was either a direct result or a
reasonably probable consequence of the act or
omission."
(vi) Whether Ansal brothers were occupiers of Uphaar E
cinema building:
. 82. In cases where negligence is alleged in regard to use
of buildings and structures permanent or temporary; the duty
to care is fixed on the person or persons who were occupiers F
of such buildings or structures. Since the charge in the present
case also relates to the use of a building, the question whether
the appellants Sushi! and Gopal Ansal, were the occupiers of
· Uphaar Cinema, so as to cast a duty to care upor1 them towards· ':
the patrons who came to watch the exhibition of G
cinematographs needs to be addressed.
83. Appearing for Sushi! Ansal Mr. Ram Jethmalani,
learned se.nior advocate, in his inimitable style and remarkable
forensic skill argued that his client Sushi! Ansal was not the
occupier of the Uphaar Cinema nor did he owe any duty of care H
658 SUPREME COURT REPORTS [2014] 9 S.C.R.
A towards those who came to watch the movie on the fateful day
so as to give rise to any civil or criminal liability against his client
for the alleged breach of any such duty. Mr. Sushi! Kumar
appearing for Gopal Ansal, adopted a similar line of argument
and urged that even Gopal Ansal had nothing to do with the
B cinema or the management of its affairs as on the date of the
unfortunate fire incident. Reliance in support of that submission
was placed both by Mr. Jethmalani and Mr. Sushi! Kumar on
the fact that the Cinema was owned by GPTA Pvt. Ltd. and later
by Ansal Theaters & Clubotels Pvt. Ltd. who alone could be said
c to be the occupiers of the Cinema at the relevant point of time.
Reliance was also placed upon the fact that Sushi! Ansal was
the Managing Director of the Company only till 21st November,
1983. He had finally retired from the Board on 17th October,
1988, thereby putting an end to his association with the Cinema
D and its affairs. Even Gopal Ansal who took over as Managing
Director of the Company on 21st November, 1983 had retired
from the Board of Directors on 17th October, 1988, whereafter
he exercised no control over the Cinema or its management
to earn him what is retrospect is a dubious distinction of being
the "occupier of the cinema". He had no doubt resumed the
E Directorship of the company for a period of six months in
December, 1994, but was concerned only with the business of
the Clubs being run by the company. This implied, according
to the learned counsel, that neither Sushi! nor Gopal Ansal was
the occupier of the Cinema on the date of the occurrence to·
F give rise to any civil or criminal liability against them.
84. Before we deal with the factual backdrop, in which the
question whether the Ansal Brothers were occupiers Of the
Cinema has to be answered, we must steer clear of the
G impression that an occupier must be the owner of the premises.
While it is true that an owner may in a given fact situation be
also the occupier of the premises owned by him, it is not correct
to say that for being an occupier one must necessarily be the
owner of the premises in question. What is important is whether
H the premises in question was sufficiently and not exclusively
SUSHIL ANSAL v. STATE THROUGH CBI 659
[T.S. THAKUR, J.]
under the control of defendanUaccused, and for being in such A
control, ownership of the premises is not a condition precedent.
An occupier may be in control of the premises even when he
does not own the same whether fully or jointly with others. It is
also not necessary that the control must be full and all pervasive.
It follows that if there are more than one occupiers of a building, B
and each one neglects the duty to care, the liability whether civil
or criminal will fall on all of them. The law on the subject is
settled in England by the decision of the House of Lords in
Wheat v. E. Lacon & Co. (supra), where Lord Denning applied
•
the test of sufficient degree of control and not exclusive or entire c
control to determine whether the person concerned was an
occupier. The following passage is apposite in this regard:
"It was simply a convenient word to denote a person who
had a sufficient degree of control over premises to put
him under a duty of care towards those who came lawfully D
on to the premises. In order to be an 'occupier' it is not
necessary for a person to have entire control over the
premises. He need not have exclusive occupation.
Suffice it that he has some degree of control. He may
share the control with others. Two or more may be E
occupiers. And whenever this happens, each is under q
duty to use care towards persons coming lawfully on to
the premises, dependent on his degree of control. If each
fails in his duty, each is liable to a visitor who is injured
in consequence of his failure but each may have a claim F
to contribution from the other."
85. To the same effect is the decision in H & N Emanuel
Ltd. v. Greater London Council & Anr. (supra) where the Court
made the following observations:
G
"Any person was an occupier for the purposes of fire if
he had a sufficient degree of control over the premises
and could say with authority to anyone who came there,
"Do or do not light a fire," or "Put out that fire". If he could,
H
660 SUPREME COURT REPORTS [2014] 9 S.C.R.
A he was liable for negligence on the part of any person
who came there."
86. Coming to the facts of the case at hand, merely
because the company was the legal owner of the Cinema
B premises, did not mean that the Company and Company alone
was the occupier thereof. The question whether the Ansal
Brothers (Sushi! and Gopal) exercised any control over the
affairs of the Cinema, and its maintenance was a pure and
simple question of fact, on which a great deal of evidence was
led at the trial, and appreciated by the two Courts below. We
C have in the preceding part of this judgment referred to the
findings of fact recorded by the Courts below on that aspect.
But, for the sake of completeness, we may refer to those
findings in some detail at this stage over again.
D 87. The trial Court and, so also, the High Court have both
concurrently held that Sushi! and Gopal Ansal were, at all
material times, at the helm of the affairs of the company that
owned Uphaar cinema. All crucial decisions relating to the
cinema including decisions regarding installation of DVB
E transformer on the premises, closure of the right side exit &
gangway and rearrangement of the seating plan in the balcony
were taken while either one or the other of the two was either
a Director or Managing Director of the company. Both the
Courts have further found that Ansal brother's control over the
F day-to-day affairs and the staff employed to look after the
cinema management continued even upto the date of the
incident. In particular the Courts below have concurrently held
that the decision to install the DVB transformer and to let out
various parts of the premises for commercial use in violation
G of the sanctioned plan were taken by Sushi! Ansal as Managing
Director of the company. Applications for grant of the cinema
license and subsequent renewals were found to have been
made by him as the representative licensee on behalf of the
company even after his purported retirement from the Board
H of Directors. Not only that, the Courts below have concurrently
SUSHIL ANSAL v. STATE THROUGH CBI 661
[T.S. THAKUR, J.]
held that Sushil Ansal was exercising a high degree of financial A
control over the affairs of the company and the cinema owned
by him. Gopal Ansal was similarly exercising an equally
extensive degree of financial control even after his retirement
as Director. The Courts below have also found that all decisions
relating to changes in the balcony seating arrangement and B
installation of additional seats were taken during Gopal Ansal's
term as Managing Director and at his request. The Courts have
noticed and relied upon the Show Cause Notice dated 28th
May, 1982 in which Gopal Ansal, the Managing Director, was
cautioned about the dangerous practice being followed by the c
cinema management of bolting the doors of the cinema hall
during the exhibition of the films. An assurance to the effect that
such a practice would be discontinued was given by Gopal
Ansal as Managing Director of the company.
88. In conclusion the High Court has outlined eight D
decisions which were directly attributable to the Ansal brothers
including decisions relating to the day-to-day affairs and
commercial use of the cinema premises as also the seating
arrangement in the balcony and in no uncertain terms rejected
the argument that Ansal brothers had nothing to do with the E
company and the cinema after their retirement from the Board
of Directors in 1988. All these findings are, in our opinion,
supported by overwhelming evidence on record which
satisfactorily proves not only that Ansal brothers continued to
exercise all pervasive control over the affairs of the cinema but F
also because the cinema license, at all material times, showed
Sushi! Ansal as the represen.tative license of the Uphaar
Cinema. Our attention was also drawn to an affidavit filed by
Sushi! Ansal marked as EX.PW.50/B in which Sushi! Ansal
unequivocally acknowledged that he was the occupier of the G
cinema. The relevant portion of the affidavit reads as under:
"/, Sushi/ Ansal, slo Late Shri Charanji Lal, Rio N-148,
Panchshila Park, New Delhi, Chairman of Green Park
Theatres Associated (P) Ltd., 115 Ansa/ Bhawan, 16
Kastuba Gandhi Marg, New Delhi - 110001, am applying H
662 SUPREME COURT REPORTS [2014] 9 S.C.R.
A for renewal of License for the year 1992-93. I have not
without permission, transferred the License or the
Licensed place or the Cinematographs to any person
during the year 1991-92 to exhibit films in the Licensed
place. I am still the occupier of the licensed premises and
B owner of the Cinematoqraph."
(emphasis supplied)
89. The Courts below have, in our view, correctly noticed
the fact that not one out of a total of 5000 shares of the company
C was ever owned by anyone outside the Ansal family. The Courts
have also placed reliance upon the depositions of Pranav Ansal
(PW-109), V.K. Aggarwal (PW-113), Subhash Verma (PW-
114) and Kusum Ansal, wife of Sushi! Ansal (PW-115) to
conclude that all these persons who were Directors or had
o financial powers on the date of the incident were completely
unaware of the affairs of the company as well as the cinema
enterprise, a fact, that goes a long way to prove that the cinema
was being managed by Ansal brothers who had a complete
sway over its affairs. What is worse is that some of these
E witnesses expressed their ignorance about whether they were
Directors or whether they had financial powers within the
company or that the company was still involved in cinema
business.
90. The cumulative effect of the above facts and
F circumstances proved by cogent evidence placed on record by
the prosecution, in our view, fully supports the prosecution case
that Sushi! and Gopal Ansal were in full control over the affairs
of the company which owned the cinema, as well as the cinema
itself, at all material times, including the date of the incident.
G We have, therefore, no hesitation in affirming the finding that
the Ansal brothers - Sushi! and Gopal were both occupiers of
the cinema complex as on the date of the incident in which
capacity they owed a duty to care for the safety of the patrons
visiting/coming to the premises.
H
SUSHIL ANSAL v. STATE THROUGH CBI 663
[TS. THAKUR, J.]
91. It was contended by Mr. Jethmalani that the offence if A
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 B
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 c
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 D
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 E
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.
F
(vii) Degree and nature of care expected of an occupier of
a cinema building:
92. What is the degree of care expected from the occupier
of a cinema is the next question to which we must advert at G
this stage. Two fundamental principles must be noticed at the
threshold while answering that question. The first is that the
degree and nature of care expected of an occupier depends
upon the fact situation in which the duty to care arises. The
second and equally important principle at common law is that H
664 SUPREME COURT REPORTS [2014] 9 S.C.R.
A the degree of care in a given fact situation would depend upon
whether the person to whom the duty is owed is a contractual
visitor, invitee, licensee or trespasser. Of these the occupier
owes the highest degree of care to a contractual visitor viz. a
person who pays consideration to be present on the premises
B for some purpose; whatever that purpose be. At common law
there is an implied term in the contract between the occupier
and the visitor that the occupier's premises shall be reasonably
safe. The occupier's duty must be held to have been breached
if any injury is caused to a contractual visitor by any defect in
c the premises apart from a latent defect. Winfield & Jolowicz
on Tort (Sixteenth Edition) explains the duty of an occupier to
take care towards different categories of visitors in the following
passage:
"At common Jaw the duties of an occupier were cast in a
D descending scale to four different kinds of persons and
a brief account is necessary to gain a full understanding
of the Act. The highest degree of care was owed by the
occupier to one who entered in pursuance of a contract
with him (for example a guest in an hotel): in that case
E there was an implied warranty that the premises were as
safe as reasonable care and skill could make them. A
lower duty was owed to the "invitee", that is to say, a
person who (without any contract) entered on business of
interest both to himself and the occupier (for example a
F customer coming into a shop to view the wares): he was
entitled to expect that the occupier should prevent
damage from unusual danger, of which he knew or ought
to have known. Lower still was the duty to the "licensee",
a person who entered with the occupier's express or
G implied permission but without any community of interest
with the occupier: the occupier's duty towards him was to
warn him of any concealed danger or trap of which he
actually knew. Finally, there was the trespasser, to whom
under the original common law there was owed only a
H duty to abstain from deliberate or reckless injury.
SUSHIL ANSAL v. STATE THROUGH CBI 665
[T.S. THAKUR, J.]
93. One of the earliest common law decisions regarding A
occupier's liability to visitors is in Mclenan v. Segar (1917) 2
KB 325 where an innkeeper was held liable for injury caused
to a guest while escaping from a fire in the inn. The fire was
caused because there was no pr6per mechanism for conveying
the smoke and burning soot from the kitchen chimney to the B
atmosphere. The mechanism for conveying the smoke had
been installed in 1910 by an architect employed by the landlord
from whom the innkeeper had taken the premises on lease.
However, the fact that the defect arose from the architect's
negligence did not prevent liability from being imposed on the c
innkeeper. The relevant portion of the judgment is as follows:
"Where the occupier of premises agrees for reward that
a person shall have the right to enter and use them for a
mutually contemplated purpose, the contract between the
parties (unless it provides to the contrary) contains an D
implied warranty that the premises are as safe for that
purpose as reasonable care and skiff on the part of
anyone can make them. The rule is subject to the
limitation that the Defendant is not to be held responsible
for defects which could not have been discovered by E
reasonable care or skill on the part of any person
concerned with the construction, alteration, repair, or
maintenance of the premises: and the head-note to
Francis v. Cockrell must to this extent be corrected. But
subject to this limitation it matters not whether the lack F
of care or skill be that of the Defendant or his servants,
or that of an independent contractor or his servants, or
whether the negligence takes place before or after the
occupation by the Defendant of the premises."
G
94. To the common law duty of care is at times added a
further obligation which too the occupier must discharge in
order that his duty to care can be said to have been fully
discharged. Such duties are often cast under statutes enacted
by the legislature or in Rules & Regulations framed in exercise H
666 SUPREME COURT REPORTS [2014] 9 S.C.R.
A of powers delegated under such enactments. These additional
safeguards against injury to life and limb of innocent parties who
are working in the premises or who visit such premises, in large
numbers, are in public interest and imply that even the 'State'
in all its manifestations is concerned about the safety of those
.B visiting such public places, be it a cinema hall as in the case
at hand or any other place of entertainment or a place where
people go for any other purpose whether as contractual visitors
or otherwise. The existence of such a statutory duty especially
one that concerns safety of the visitors adds another dimension
c to the duty to care to which we shall presently advert. But before
we do so we need to examine whether any such statutory duty
was cast upon the occupier of the cinema and if so what was
the nature of that duty.
95. The Cinematograph Act, 1952 inter alia regulates
D exhibition of films by means of cinematographs. Section 10 of
the Act, provides that save as otherwise provided under Part
Ill of the Act no person shall give an exhibition by means of a
cinematograph elsewhere them in a place licensed under this
part or otherwise than in compliance with any conditions and
E restrictions imposed by such license. Section 12 of the Act
stipulates the restrictions on powers of the licensing Authority
and forbids grant of a license except where he is satisfied that
the rules made under Part Ill have been substantially complied
with and adequate precautions have been taken in the place
F in respect of which the license is to be given to provide for
safety of persons attending exhibitions therein. Section 16 of
the Act empowers the Government to make rules under Part Ill
of the Act, which part as noticed above also makes safety of
persons attending the exhibition an important requirement. Rule
G 10(1) of the Delhi Cinematograph Rules framed in exercise of
the said power explicitly makes the licensee responsible for the
safety of those attending the exhibition of films. It reads:
"10(1) The licensee shall be responsible for compliance
with the provisions of these rules and with the conditions
H of his license, for the maintenance of the licensed
SUSHIL ANSAL v. STATE THROUGH CBI 667
[T.S. THAKUR, J.]
premises at all times and in all respects in conformity with A
the standards prescribed by these rules and for taking all
necessarv measures before anv cinematograph
exhibition is commenced to ensure the safetv of the
public and his employees against fire and other
accidents. B
(2) The licensee or some responsible person nominated
by him in writing for the purpose shall be in general
charge of the licensed premises and cinematograph
during the whole time where any exhibition is in progress." C
(emphasis supplied)
96. The rules make further provisions for safety of the
cinema goers. For instance Rules 24 and 37 of the Delhi
Cinematograph Act, 1953 provide for attendants to carry electric 0
torches for use in emergency and for keeping the fire
appliances in working order and incharge of some person
specially appointed for the purpose. The said two rules may
also be extracted at this stage:
"24. Attendants and all members of the staff employed E
in the building during an exhibition shall carry electric
torches for use in emergency in the event of failure of the
lighting.
37. "Before the commencement of each performance the F
cinematograph operator shall satisfy himself that the fire
appliances, intended for use within the enclosure are in
working order, and during the performance such
appliances shall be in the charge of some person
specially appointed for that purpose, who shall see that G
they are kept constantly available for use."
97. The First Schedule to the OCR 1953 compliance
whereof is essential for grant and renewal deals extensively with
several aspects most if not all of which deal with the safety of
H
668 SUPREME COURT REPORTS [2014] 9 S.C.R.
A the cinema goers. For instance Para 3 of the schedule deals
with external walls, Para 6 of the schedule deals with the number
of persons to be admitted, Para 7 with seating within the hall,
Para 8 with gangways, Para 9 with stairways, Para 10 with·
exits, Para 13 with ventilation, Para 15 with Parking, Para 16
B with fire precautions, Para 34(1) with illumination of exits,
passages, corridors and stairways, Paras 35 and 36 with
emergency lights.
98. A qonspectus of the provisions of the Act and the rules
referred to above shows that the duty to "ensure safety" of those
C entering a cinema hall for watching the exhibition of a film, is
cast upon the occupier of the hall. The use of words "taking all
necessary measures before a cinematograph exhibition is
commenced to ensure safety of the public and his employees
against fair and other accidents" leaves no manner of doubt
D that apart from the common law duty to care, the statutory
provisions too cast such an obligation upon the licence/occupier
of the cinema hall.
99. That brings us to the question whether and if so what
E is the effect of a statutory obligation to care for the safety of
the visitors to a cinema hall, where a duty to care otherwise
exists under the common law. The answer can be best provided
by a reference to the English decision in Lochge/ly Iron & Coal
Co. Ltd. v. M'Mu/lan, (1934) AC 1. A reading of this case would
F suggest that where a duty of care exists under common law,
and this duty is additionally supported and clarified by statutory
provisions, a breach of the statutory duty would be proof enough
of negligence. It would not be open to the defendant in such a
case to argue that the harm was not foreseeable, since "the
G very object of the legislation is to put that particular precaution
beyond controversy".
100. The import and significance of the case is explained
in Clerk & Lindsell on Torts (Twentieth Edition) as follows:
H "In Lochgel/y Iron & Coal Co Ltd v. M'Mul/an, the House
.SUSHIL ANSAL v. STATE THROUGH CBI 669
[T.S. THAKUR, J.]
of Lords came close to equating an action for breach of A
statutory duty with an action in negligence. Lord Atkin
said that all that was necessary to show "is a duty to take
care to avoid injuring; and if the particular care to be
taken is prescribed by statute, and the duty to the injured
person to take the care is likewise imposed by statute, B
and the breach is proved, all the essentials of negligence
are present". Negligence did not depend on the Court
agreeing with the legislature that the precaution ought to
have been taken, because the "very object of the
legislation is to put that particular precaution beyond C
controversy". On this approach breach of a statutory duty
constitutes negligence per se, but it applies only to
legislation which is designed to prevent a particular
mischief in respect ·or which the defendant is already
under a duty in common law. Failure to meet the
prescribed statutory standard is then treated as D
unreasonable conduct amounting to negligence,
because a reasonable man would not ignore precautions
required by statute, and the defendant cannot claim that
the harm was unforeseeable because the legislature has
already anticipated it. The statutory standard E
"crystallises" the question of what constitutes.
carelessness. On the other hand, where legislation does
not deal with circumstances in which there is an existing
common law duty, then, unless expressly stated, breach
of the statute would not give rise to an action, because· F
the damages may greatly exceed the penalty considered
appropriate by the legislature."
101. Reverting back to the degree and nature of care
expected of an occupier of a cinema hall, we must at the outset G
say that the nature and degree of care is expected to be such
as would ensure the safety of the visitors against all foreseeable
dangers and harm. That is the essence of the duty which an
occupier owes to the invitees whether contractual or otherwise.
The nature of care that the occupier must, therefore, take would
H
670 SUPREME COURT REPORTS [2014] 9 S.C.R.
A depend upon the fact situation in which duty to'care arises. For
instance, in the case of a hotel which offers to its clients the
facility of a swimming pool, the nature of the care that the
occupier of the hotel would be expected to take would be
different from what is expected of an occupier of a cinema hall.
8 In the former case, the occupier may be expected to ensure
that the pool is safe for use by the guests in the hotel, in that
the depth is safe for those using the diving board if any, that
life guards are on duty when children or other guests are using
the pool, that immediate medical succor is provided to those
C who may meet with any accident, and so on. The nature of duty
is in that sense different from that of cinema owner/occupier,
where all these may not form part of his duty to care. In the case
of a cinema hall the nature of an occupier's duty to care may,
inter alia, require him to ensure rapid dispersal from the hall in
the event of any fire or other emergency, and for that purpose
D to provide suitable gangways and keep them clear of any
obstruction, to provide proper exits, to keep the exit signs
illuminated, to provide emergency lighting, to provide fire fighting
systems, alarm systems and to employ and keep trained
personnel on duty whenever an exhibition of cinematograph is
E in progress.
102. An occupier of a cinema would be expected to take
all those steps which are a part of his duty to care for the safety
and security of all those visiting the cinema for watching a
F cinematograph exhibition. What is important is that the duty to
care is not a onetime affair. It is a continuing obligation which
the occupier owes towards every invitee contractual or
otherwise every time an exhibition of the cinematograph takes
place. What is equally important is that not only under the
G common law but even under the statutory regimen, the
obligation to ensure safety of the invitees is undeniable, and
any neglect of the duty is actionable both as a civil and criminal
wrong, depending upon whether the negligence is simple or
gross.
H
SUSHIL ANSAL v. STATE THROUGH CBI 671
[T.S. THAKUR, J.]
103. In the case of gross negligence prosecution and A
damages may be claimed simultaneously and not necessarily
in the alternative. We may at this stage refer to a few
pronouncements to illustrate that the'. du~y to care and the nature
of care expected of any person accused of committing an
offence under Section 304A IPC has always been seen in the B
fact situations in which the question arose. In Bhalchandra
Waman Pathe v. State of Maharashtra 1968 Mah. L.J. 423
(SC) this Court was dealing with a case where the regulations
framed by the Commissioner of Police, under the Bombay
Police Act, required the driver of car to look ahead and see c
whether there was any pedestrian in the crossing and if there
was one to wait till he crossed the carriage way. The accused
in that case had failed to take care and do that, resulting in the
death of a pedestrian who was crossing the road. The question
that fell for consideration was whether the driver was rash or
0
negligent. This Court held that since the speed limit was 35
miles per hour, and since the accused was driving the car at
35 miles an hour, there was no rashness on his part in the
absence of any other circumstance showing that he was driving
at a reckless speed. Even so the charge of negligence was · E
held proved against the accused as he had breached the duty
cast upon him to see whether there was any pedestrian to the
pedestrian crossing. Law, observed this Court, enjoined upon
him and ordinary human prudence required him to do so.
Failure of the accused to exercise that reasonable care and
caution rendered him liable in criminal law to a conviction under F
Section 304A of the IPC. This Court approved the ratio of the
decisions in /du Beg and Nidamarti cases (supra), that
distinguished 'rashness' and 'negligence', and held that while
rashness implies recklessness or indifference to
consequences, negligence arises from neglect of a civic duty G
of circumspection, "which having regard to all the
circumstances out of which the charge has arisen, it was the
imperative duty of the accused person to have adopted."
Rashness, observed this Court, was undoubtedly a graver
offence. H
672 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 104. In Bhalchandra @ Bapu and Anr. v. State of
Maharashtra, 1968 (3) SCR 766, this Court was dealing with
a case in which an explosion in a factory manufacturing crackers .
had caused the death of some of the workers and injured others.
The findings recorded by the Courts below was that the
B accused had in their possession unauthorized explosives in
contravention of the Act and the Rules and had committed
several breaches ol those Rules and the conditions of the
license issued to them. Relying upon the decisions of this Court
in Kurban Hussem's case (supra) and Suleman Rahiman
c .Mulani's case (supra), it was contended that mere violation of
Rules or terms of a licence would not make the accused liable
for any punitive action againstthem. The decisions of this Court
in Kurban Hussein's and Sulema() Rahiman Mulani's cases
(supra) were distinguished by this Court and the conviction of
o the accused under Section 304A IPC upheld in the following
words:
"... The facts of the present case are somewhat different
and distinguishable from those of the above two cases
as will be clear from a close examination of the material
E evidence relating to the substances which were being
used in the manufacture of the fire works etc. in the factory
of the appellants...
xx xx xx
F
.. .Although there was no direct evidence of the
immediate cause of the explosion but indisputably the
explosives the possession of which was prohibited under
the notifications issued under the Act were found in the
shops or the premises where the appellants carried on
G
their business and the substances that have been
mentioned which were of a highly hazardous and
dangerous nature were apparently being used in the
manufacture of the fire works since they were found at the
scene of the explosion, (vide the evidence mentioned
H
SUSHIL ANSAL v. STATE THROUGH CBI 673
[T.S. THAKUR, J.]
before and the finding of the trial court and the Additional A
Sessions Judge). As stated by Dindeshchandra PW 10
these explosives had sensitive compositions and even
friction or percussion could cause explosion. It is further
proved that in the factory itself where the explosion took
place the persons who were employed were mostly B
women who brought their small children with them and
young children below the age of 18 had been employed
in the manufacture of the fire works etc. The factory was
situate in close proximity to residential quarters. It
became therefore all the more incumbent on the c
appellants to have completely avoided the use of highly
sensitive compositions of the nature mentioned above.
The decision which is apposite to the present case'
is the one recently delivered by this Court on April 3,
1968 in Rustom Sherior Irani v. State of Maharashtra. D
There the chimney of a bakery had collapsed and 11
persons were killed and certain persons were injured. The
appellant had submitted no plan for the alteration of the
chimney for the third time and had asked just a mason
to remove the iron pipe which had corroded and to bring E
the height of the chimney to 65 feet. The mason had f ;fr
him that while the work was being executed it \Va.·
unnecessary to completely keep the bakery closed
except during the period the repair work was being done.
After the chimney fell down a number of officers visited F
the spot and inspected the bakery. The Chief Inspector
of Boilers was of the opinion that the cause of the
collapse of the chimney was the explosion which occurred
in it because of the products of combustion and gases
not being permitted to escape freely as a pipe of 6 inches G
diameter had been put instead of 12 inches diameter. It
is unnecessary to refer to the detailed discussion of the
evidence. It was established that the construction of the
new chimney had been done without the advice of a
properly qualified person. The argument raised was on H
674 SUPREME COURT REPORTS [2014] 9 S.C.R.
A the fines similar to the one which had been advanced in
Kurban Hussein Mohammedafi Rangwalla v. State of
Maharashtra. It was maintained that no negligence on the
part of the appef/ant had been established and it was on
account of the negligence of the mason that the chimney
B had fallen down. This Court was of the view that the
proximate and efficient cause of the deaths was the
negligence of the appellant in choosing a pipe of 6
inches diameter and asking a mason (who was apparently
not a qualified person) to carry out the alterations and
c also continuing working at/east one oven there during the
period while the alterations to the chimney were being
made."
105. This Court referred with approval to Queen Empress
v. Bhutan ILR XVI All. 472 and Kamr-ud-din v. King Emperor
D 1905 PR 22(Cr) and English decisions in Regina v. David
Dant, 169 English Reports (C.C.) 1517 and Rex. v. Pittwood
(1902) 19 TLR 37 to hold that criminal negligence can be found
on varying sets of circumstances, and that the tests applied in
the said cases including the list of direct or efficient cause was
E fully applicable to the case at hand. It is noteworthy that in Rex.
v. Pittwood (supra), the prisoner was charged with manslaughter
on the ground that he had been negligent in not closing a gate
when a train passed which it was his duty to do with the result
that White who was in a hay cart was killed while the cart was
F struck by the train which came when it was crossing the line.
The Court had in that case, held the prisoner liable as it was
his duty to keep the gate shut to protect the public against an
oncoming train. This act of misfeasance was held to constitute
gross negligence in the discharge of his duty towards the public
G crossing the road, amounting to an offence of manslaughter.
106. In S.N. Hussain's case (supra), this Court was dealing
with an R.T.C. bus that met with an accident at a manned
railway level crossing which was in the charge of a gateman
H whose duty it was to close the gate when the train was expected
SUSHIL ANSAL v. STATE THROUGH CBI 675
[T.S. THAKUR, J.]
to pass by. When the bus reached the level crossing the gate A
was open. The accused- bus driver finding the gate open
crossed the meter gauge track when suddenly a goods train
dashed against the bus on the rear side with the result that the
bus was thrown off course causing serious injuries to several
passengers, one of whom was killed in the accident. The B
appellant's defense was that he was neither rash nor negligent
and the accident was unavoidable for he did not realize that a
goods train was passing at the time and since the gate was
open he crossed the railway crossing absolutely oblivious of the
fact that a train was approaching. c
107. The Trial Court accepted that explanation and
acquitted the accused. The High Court reversed the order and
convicted him. This Court relying upon the definition of criminal
rashness and criminal negligence given by Straight J. in
Empress v: /du beg (supra) and in Bhalchandra Waman Pathe D
v. State of Maharashtra (supra) held that where a railway level
crossing was unmanned, it may be right to insist that the driver
of the vehicle should stop the vehicle, look both ways to see if
a train is approaching and thereafter drive the vehicle after
satisfying that there was no danger in crossing the railway track. E
Where the level crossing was protected by a gateman and the
gateman opens out the gate inviting the vehicles to pass, it will
be too much to expect the driver to stop his vehicle and look
out for any approaching train. The Court accordingly acquitted
the appellant of the offence punishable under Section 304A IPC. F
108. A conspectus of the decisions quoted above reveals
that an offence under Section 304A IPC may arise under a
variety of circumstances, ranging from reckless driving of
vehicles to negligent handling of explosives in a factory. In every G
case, this Court has been mindful to determine the nature of
care which ought to have been exercised by the accused
person in the context of all the facts and circumstances of that
case. Moreover, this Court has been careful while applying or
distinguishing preceding case law relating to Section 304A to H
676 SUPREME COURT REPORTS [2014] 9 S.C.R.
A read each case in the context of its own facts, without deriving
from it any general propositions to be applied in all cases
dealing with the same offence. Therefore, the question of the
nature of care which ought to have been exercised by the
occupiers of Uphaar Cinema, as ordinary prudent
B businessmen, must be decided solely on the totality of the facts
and circumstances of the present case.
109. In the case at hand, the claim for compensation has
already been awarded by the High Court and affirmed by this
Court, no matter against the company as the owner of the
C cinema hall. Dealing with the question of negligence, this Court
in Municipal Council of Delhi, Delhi v. Association of Victims
for Uphaar Tragedy and Ors. (2011) 14 SCC 481 observed:
"27. At the outset it should be noted that the causes
D for the calamity have been very exhaustively considered
by the High Court and it has recorded a categorical
finding about the negligence and the liability on the part
of the licensee and the DVB. On the examination of the
records, we agree with the High Court that such a
E catastrophic incident would not have happened if the
parapet wall had not been raised to the roof level. If the
said wall had not been raised, the fumes would have
dispersed in the atmospheric air. Secondly if one of the
exits in the balcony had not been blocked by construction
F of an owner's box and if the right side gangway had not
been closed by fixing seats, the visitors in the balcony
could have easily dispersed through the other gangway
and exit into the unaffected staircase. Thirdly if the cars
had not been 1parked in the immediate vicinity of the
transformer room and appropriate pit had been made for
G
draining of transformer oil, the oil would not have leaked
into the passage nor would the burning oil lighted the
cars, as the fire would have been restricted only to the
transformer room. Even if one of the three causes for
which the theatre owner was responsible, was absent, the
H
SUSHIL ANSAL v. STATE THROUGH CBI 677
[TS. THAKUR, J.]
calamity would not have occurred. The Licensee could A
not point out any error in those findings. Ultimately
therefore the contention of the licensee before us was not
to deny liability but only to reduce the quantum of liability
fastened by the High Court and to increase the share of
the liability of the three statutory authorities. B
xxx xxx xxx
57. The licensee argued that the entire liability should be
placed upon the DVB. It was contended that DVB have
installed a transformer of a capacity of 1000 KV without C
obtaining the statutory sanction/approval and without
providing all the safety measures which it was duty bound
to provide under the relevant Electricity Rules, and
therefore, DVB alone should be responsible for the
tragedy. This contention has no merit. In fact none in the D
main hall (ground floor of the theatre) died. Those on the
second floor also escaped. It is only those in the balcony
caught in noxious fumes, which died of asphyxiation. The
deaths were on account of the negligence and greed on
the part of the licensee in regard to installation of E
additional seats, in regard to closing of an exit door,
parking of cars in front of transformer room by increasing
parking from 15 to 35 and other acts. We therefore reject
the contention that DVB should be made exclusively
liable to pay the compensation. We have already held F
that the Licensing Authority and MCD are not liable.
Therefore, the liability will be 85% (Licensee) and 15%
(DVB)."
110. Mr. Jethmalani, however, argued that the findings
recorded by this Court while dealing with the claim for payment G
of damages could not be made a basis for holding the
appe!lant-Ansal Brothers guilty of an offence punishable under
Section 304A of the IPC, not only because those findings were
not recorded in relation to the appellants but also because the
standard of proof required for award of compensation was H
678 SUPREME COURT REPORTS [2014] 9 S.C.R.
A different from that required to prove a criminal charge. There
is merit in that contention. The standard of proof required being
different, simply because damages have been awarded against
the owner of the cinema hall can be no reason why the occupier
should be found guilty of gross negligence required to be
B proved for an offence under Section 304A. The claim for
payment of compensation was at any rate made and awarded
against the company who owned the cinema hall. This Court
cannot in that view make use of the findings recorded in the
compensation case nor is it otherwise necessary for us to do
c so for the evidence adduced at the trial is sufficient for us to
independently determine the question of negligence as also the
criminal liability of the occupier of the cinema arising from the
same.
111. The nature of care in the case of dtilema theatres
D would depend upon three primary factors that the occupier of
the cinema must at all times bear in mind. The first is that the
cinema hall is an enclosed and necessarily a dark space to
which public at large have access on payment of a price for
the ticket that entitles him to watch the exhibition of a
E cinematograph. Such theatres, at any given point of time, admit
large crowds of people whose safety is the obligation of the
occupier till such time they leave the precincts of the theatre.
The duty to take care regarding the safety of those admitted to
watch an exhibition rests with the occupier who can and ought
F to even by the most ordinary standards of prudence foresee
that in the event of anything untoward happening whether out
of a fire incident or otherwise, those inside the cinema
premises can be safe only if they exit from the same as rapidly
as possible. Any delay whether on account of obstruction in or
G around the exit points or in the gangways can be reasonably
foreseen by any prudent businessman running the business of
exhibition of cinematographs to be extremely hazardous and
at times suicidal, with the potential of claiming human lives
whether out of a stampede, panic or asphyxiation in the event
H of a fire. It does not require any extra expertise for a cinema
SUSHIL ANSAL v. STATE THROUGH CBI 679
[T.S. THAKUR, J.]
owner or the occupier of a cinema theatre to foresee such A
consequences and to take remedial steps to prevent the same
as a part of his duty to care towards those visiting the theatre:
112. The second and equally important dimension relevant
to the duty of an occupier of a cinema theatre concerns the
B
statutory provisions that regulate such duties and make certain
safety measures essential. As previously discussed, the effect
of such statutory provisions where the nature of care is
specifically outlined is that an occupier cannot argue in defence
that any danger arising out of violation or non-adherence to the
provisions of the statute was not reasonably foreseeable by him. C
The decision of the House of Lords in Lochge/ly's case (supra)
succinctly explains "the effect of an additional statutory burden
cast upon an occupier where a common law duty already
exists."
D
113. The third dimension that must also be constantly
borne in mind while determining whether the occupier had
breached his duty to care towards the safety of the patrons is
"that degree of care which an occupier is required to take is
commensurate with the risk created" as held by Lord E
Macmillan in Read v. J. Lyons & Co. Ltd. [1947] AC 156 and
an earlier decision in Glasgow Corp v. Muir (1943) AC 448.
The application of that proposition is appropriate in the case
at hand where the installation of a DVB transformer within the
cinema premises had increased the degree of risk on account F
of fire hazard which resultantly enhanced the degree of care
expected of the occupiers in maintenance of the safety
measures for the safety of those inside the theatre.
114. Summarising the common law duty as enhanced and
reinforced by the provisions of Cinematograph Act, 1952 and G
the OCR, 1953, the appellant-Ansal brothers as occupiers of
the cinema were duty bound to take care and such care included
the care to:
(i) To provide a seating arrangement which ensured easy H
680 SUPREME COURT REPORTS [2014] 9 S.C.R.
A access to exits to all patrons in the event of an emergency,
wherever they may be seated.
(ii) To provide vertical and horizontal gangways of
appropriate width along all sides of the auditorium/balcony
as well as down the centre of the seating accommodation
B
to provide convenient access to the exits.
(iii) To provide an adequate number of well-marked exits
suitably spaced along both sides of the auditorium/balcony
and along the back thereof, leading directly into at least
c two independent thoroughfares so as to provide speedy
egress to the patrons.
(iv) To provide at least two stairways of adequate width for
public use, providing access to every upper floor in the
D building.
(v) To ensure that there was no obstruction in the gangways
and other pathways to the exits, as well as the staircases
leading to open space.
E (vi) To provide emergency lighting and well-lit exit signs for
use in the event of a power failure or other emergency in
order to guide patrons from out of the dark.
(vii) To put in place a working public address and/or alarm
system to warn patrons in the event of any danger so that
F
they may exit from the premises without delay or loss of
time.
(viii) To provide an adequate number of fire extinguishers
and/or other fire-fighting equipment and to keep them
G readily available for use in an emergency at all times.
(ix) To appoint an adequate number of torch men and
persons in charge of the fire-fighting equipment to be
present throughout the duration of a film exhibition to aid
H
SUSHIL ANSAL v. STATE THROUGH CBI 681
[T.S. THAKUR, J.]
and guide patrons out of the theatre as and when such a A
need arises.
(viii) Whether the accused were negligent and if so,
whether the negligence was gross:
115. The Courts below have concurrently found that the B
occupiers of the cinema building had committed several
deviations from the sanctioned building plan apart from
breaches of statutory provisions. These deviations and
breaches may not have directly contributed to the death of the
victims in the instant case but the same cannot be said to be C
wholly irrelevant for purposes of determining whether or not the
occupiers had neglected their duty to care and if they had,
whether such neglect was gross in nature. The concurrent
findings of the Courts below in the nature of deviations from the
sanctioned building plan of the cinema and the statutory D
requirements may be enumerated as under:-
(1) That the occupiers permitted the installation of a DVB
transformer within the cinema premises, although the building
plan did not envisage or permit any such installation. The E
occupier's contentior:i that the installation of the transformer was
under coercion ramained unsubstantiated.
(2) That the re<::1r parapet wall behind the transformer room
was constructed upto the ceiling height thereby preventing
smoke rising from the burning transformer oil and the cars F
parked in the parking area from dispersing into the open
atmosphere.
(3) That the stairway leading to the terrace was obstructed
by the installation of a full width door in the staircase landing G
as well as construction of a reception counter in the staircase
leading to the terrace by Sarin Associates one of the tenants
inducted by the owners.
(4) That the exhaust fans opened into the staircase rather
H
682 SUPREME COURT REPORTS [2014] 9 S.C.R.
A than into an open space thereby defeating the purpose of their
installation.
(5) That a homeopathic dispensary was constructed above
the ramp behind the transformer room which was found to be
and described as a fire hazard during MCD inspections since
8
1983.
(6) That the staircase around the lift leading to the
basement was being used by M/s Sehgal Carpets by
conversion of that area into an office was an additional hazard
C and against the sanctioned plan.
(7) That the enclosure of the open space adjoining the
transformer room to be used as a ticket counter and the
creation of a glazed verandah next to the Manager's room were
0 also deviations from the building plan.
(8) That conversion of the Operator room on the second
floor into an office-cum-bar room too was a deviation.
(9) That letting out of the top floor as office space with
E wooden partitions was also a deviation and was pointed out
to be a safety hazard during fire safety inspections.
(10) That out of 22 fire extinguishers seized after the
incident from various parts of the building including the parking
F lot and balcony, 10 were empty, 4 were not working properly
while 1 was leaking from the top. This meant that only 7 of such
extinguishers were in working condition.
(11) That neither the Projector Operator nor any other ,
person present during the exhibition of the cinematograph was
G trained in fire fighting as required in OCR 1953.
116. The above deviations, it was rightly contended by Mr.
Jethmalani did not constitute the causa causans for the death
of the victims in the instant case. Even so two inferences are
H clearly available from these deviations namely (i) That the
SUSHIL ANSAL v. STATE THROUGH CBI 683
[T.S. THAKUR, J.]
occupiers of the cinema building were not sensitive towards the A
demands of safety of the patrons and amply showed that the
safety of the visitors to the theatre was a matter of low priority
for the occupiers ana (ii) That the deviations raised the level
of risk to the safety of the patrons which in turn required the
occupiers to proportionately raise the level of their vigil and the B
degree of care in regard to the safety of those visiting the
cinema. Instead of removing the deviations and the perceived
fire hazards and thereby reducing the risk of exposing the
patrons to avoidable dangers to their safety the occupiers
committed several breaches that directly contributed to the loss c
of valuable human lives. For instance both the Courts have
concurrently held the following breaches to have been
established, by the evidence adduced by the prosecution:
(1) That the cinema did not have any functional Public
Address System necessary to sound an alarm in D
the event of a fire or other emergency. The PA
system of the cinema was found to be dysfunctional
at the time of the occurrence hence could not be
used to warn or to sound an alarm to those inside
the cinema to exit from the hall and the balcony. E
(2) That the emergency lighting even though an
essential, requirement and so also the well-lit exits
stipulated under the OCR 1953 were conspicuous
by their absence. The failure of the electric supply F
on account of tripping of the main supply lines
consequently plunged the cinema hall and the
balcony area into darkness leaving those inside the
balcony panic stricken and groping in the dark to
find exits in which process they got fatally exposed G
to the carbon monoxide laden smoke that had filled
the hall.
(3) That blocking of the vertical gangway along the
rightmost wall and the narrowing of the vertical
gangway along the right side of the middle exit by H
684 SUPREME COURT REPORTS [2014] 9 S.C.R.
A installation of additional seats had the effect ·of-
depriving the patrons of the facility to use the right
side gangway and the gangway along the middle
exit for quick dispersal from the balcony
(4) That the closure of the right side exit in the balcony
B
area by installation of a private eight-seater box
permanently cut off access to the right side
staircase and thereby violated not only the OCR
1953 but also prevented the patrons from using that
exit and the right side stairway for quick dispersal
c from the balcony.
(5) That the introduction of the new exit in the left wing
of the balcony in lieu of the closed right side exit
did not make up for the breach of Para 10 (4), First
D Schedule of OCR 1953 which mandates that exits
on both sides of the auditorium/balcony.
(6) That failure to introduce fourth exit even when the
total number of seats in the balcony had gone
above 300 with the addition of 15 more seats
E
installed in 1980, further compromised the safety
requirements statutorily prescribed under the OCR.
(7) That bolting of the middle entry/exit doors l~ading
into the foyer obstructed the flow of patrons ~Ut of
F the balcony exposing them to poisonous gas that
spread into the hall for a longer period then what
was safe for the patrons to survive.
(8) That the absence of any staff members to open the
exit gates and to generally assist the patrons in
G
quick dispersal from the balcony resulted in the
patrons inhaling poisonous gas and dying because
of asphyxiation.
(9) That the bolting of the door leading from the foyer
H into the right side staircase and outside which had
SUSHIL ANSAL v. STATE THROUGH CBI 685
(T.S. THAKUR, J.]
to be forced open also prevented the quick A
dispersal and led to a large number of causalities.
(10) That construction of the refreshment counter near
the exit gate of the first floor and another near the
second floor inhibited free passage of the patrons.
8
117. That the breaches enumerated above have been
proved by the evidence adduced at the trial is concluded by
the concurrent findings recorded by the two Courts below. There
is, in our opinion, no perversity in the conclusions drawn by the
Courts below on the aspects enumerated above. In the light of C
those conclusions it can be safely said that the occupiers had
committed a breach of their duty to care and were, therefore, '
negligent.
118. The argument that the incident in question was not 0
reasonably foreseeable must in the light of what is stated above
be rejected. So also, the argument that since no untoward
incide.nt had occurred for many years prior to the occurrence
that claimed so many lives, the same indicated that the
occurrence was not reasonable foreseeable deserves to be E
mentioned only to be rejected. A similar contention had in fact
been rejected by thjs Court even in Kurban Hussein's case
(supra), where this Court said :
"In particular it is urged ~hat t/:Jis method of work has
been going on for some years and no fire had broken out F
and this sh~ws that though there may have been possible
danger to human life from such fire or combustible matter
there was no probable danger. We are unable to accept
this contention. The fact that there was no fire earlier in
this room even though the process had been going on G
for some years is not a criterion for determining whether
the omission was such as would result in probable
, da~ger to human life."
I \<: ~'\I,
\t 19. 'To the same effect is the observation made by this H
686 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Court in State through PS Lodhi Colony, New Delhi v. Sanjeev
Nanda (2012) 8 SCC 450, where this Court held that just
because the accused in that case had driven for sixteen
kilometers without any untoward incident did not by itself provide
him a defence, or prove his innocence.
B
(viii) Whether the accused were negligent and if so,
whether the negligence· was gross:
120. The question then is whether the negligence of Ansal
brothers-the occupiers of the cinema was so gross so as to
C be culpable under Section 304A of the IPC. Our answer to that
question is in the affirmative. The reasons are not far to seek.
In the first place the degree of care expected from an occupier
of a place which is frequented everyday by hundreds and if not
thousands is very high in comparison to any other place that is
o less frequented or more sparingly used for public functions . The
higher the number of visitors to a place and the greater the
frequency of such visits, the higher would be the degree of care
required to be observed for their safety. The duty is continuing
which starts with every exhibition of cinematograph and
E continues till the patrons safely exit from the cinema complex.
That the patrons are admitted to the cinema for a price, makes
them contractual invitees or visitors qua whom the duty to care
is even otherwise higher than others. The need for high degree
of care for-the safety of the visitors to such public places offering
, F entertainment is evident from the fact that the Parliament has
enacted the Cinematograph Act and the Rules, which cast .
specific obligations upon the owners/occupiers/licensees with
a view to ensuring the safety of those frequenting such places.
The annual inspections and the requirements of No Objection
G Certificates to be obtained from authorities concerned is yet
another indicator of tiow important the law considers the safety
.of the patrons to be. Any question as to the nature and 1he
extent of breach must therefore be seen \
in the backdrop of the
/
_above duties and obligations that arise bQth under the_ common
_• law and the statutory provisions alike. Judged in/\Jle above
H. . - . -
SUSHIL ANSAL v. STATE THROUGH CBI 687
[T.S. THAKUR, J.]
backdrop it is evident that the occupiers in the present case A
had showed scant regard both for the letter of law as also their
duty under the common law to care for the safety of their
patrons. The occupiers not only committed deviations from the
sanctioned building plan that heightened the dangers to the
safety of the visitors but continued to operate the cinema in B
contemptuous disregard for the requirements of law in the
process exposing the patrons to a high degree of risk to their
lives which some of them eventually lost in the incident in
question. Far from taking any additional care towards safety
of the visitors to the cinema the occupiers asked for permission c
to place additional seats that further compromised the safety
requirements and raised the level of risks to the patrons. The
history of litigation between the occupiers on the one hand and
the Government on the other regarding the removal of the
additional seats permitted during national emergency and their
0
opposition to the concerns expressed by the authorities on
account of increased fire hazards as also their insistence that
the addition or continuance of the seats would not affect the
safety requirements of the patrons clearly showed that they
were more concerned with making a little more money out of
the few additional seats that were added to the cinema in the E
balcony rather than maintaining the required standards of safety
in discharge of the common law duty but also under the
provisions of the OCR 1953.
(ix) Further contentions urged in defence and F
findings thereon:
121. Appearing for the appellant Sushi! Ansal, Mr.
Jethmalani strenuously argued that the death of 59 persons in
the incident in question was caused by the fire that started from
G
the DVB transformer, which was poorly maintained and
shabbily repaired by the DVB officials on the morning of 13th
June, 1997 the date of incident. The causa causans for the loss
of human lives thus was the transformer tha't caught fire
because of the neglect of the DVB officials who did not even
H
688 SUPREME COURT REPORTS [2014] 9 S.C.R.
A have a crimping machine to repair the transformer properly. The
absence of an oil soaking pit in the transformer room was also
a reason for the oil to spill out from the transformer room to
spread the fire to the parking area from where smoke
containing lethal carbon monoxide rose, and due to chimney
B effect, entered the hall to cause asphyxiation to those inside
the balcony. He urged that there was no evidence that any death
had taken place inside the balcony which proved that most if
not all the patrons sitting in the balcony had exited from that
area, but died on account of the poisonous effect of the gas
c enough to kill human being within minutes of exposure. Heavy
reliance was placed by Mr. Jethmalani upon the decision of this
' Court in Kurban Hussein's case (supra) in support of his
submission that the causa causans in the case at hand was
the fire in the DVB transformer and not the alleged deviations
in the building plan or the seating arrangement or the
0
obstructions in the staircase, that led out of the cinema
precincts.
122. Mr. Harish Salve, appearing for the CBI and Mr.
K.T.S. Tulsi appearing for the Victims Association contended
E that while there was no quarrel with the proposition that death
must be shown to have occurred as a direct, immediate or
proximate result of the act of rashness or negligence, it was
not correct to say that the deaths in this case had occurred
because of the fire in the transformer. It was also not correct to
F draw any analogy on facts with any other decided case including
that of Kurban Hussein (supra). Failure of the victims to rapidly
exit from the smoke filled atmosphere in the balcony area
because of obstructions and deviations proved at the trial was
the real, direct and immediate cause for the death of the victims
G in the present case who would have safely escaped the
poisonous carbon monoxide gas only if there were proper
gangways, exits, emergency lights, an alarm system in working
condition and human assistance available to those trapped
inside the hall.
H
SUSHIL ANSAL v. STATE THROUGH CBI 689
[T.S. THAKUR. J.]
123. We have at some length dealt with the ingredients of A
an offence punishable under Section 304A of the IPC in the
earlier part of this judgment. One of those ingredients indeed
is that the rash or negligent act of the accused ought to be the
direct, immediate and proximate cause of the death. We have
in that regard referred to the decisions of this Court to which B
we need not refer again. The principle of law that death must
be shown to be the direct, immediate and proximate result of
the rash or negligent-act is well accepted and not in issue before
us as an abstract proposition. What is argued and what falls
for our determination is whether the causa causans in the case c
at hand was the fire in the DVB transformer as argued by the
defence or the failure of the victims to rapidly exit from the
balcony area. Two aspects in this connection need be borne
in mind. The first is that the victims in the instant case did not
die of burn injuries. All of them died because of asphyxiation D
on account of prolonged exposure to poisonous gases that filled
the cinema hall including the balcony area. Fire, whatever may
have been its source, whether from the DVB transformer or
otherwise, was the causa sine qua non for without fire there
would be no smoke possible and but for smoke in the balcony
E
area there would have been no casualities. That is not,
however, the same thing as saying that it was the fire or the
resultant smoke that was the causa causans. It was the inability
of the victims to move out of the smoke filled area that was the
direct cause of their death. Placed in a smoke filled atmosphere
any one would distinctively try to escape from it to save himself. F
If such escape were to be delayed· or prevented the causa
causans for death is not the smoke but the factors that prevent
or delay such escape. Let us assume for instance that even
when there are adequate number of exits, gangways and all
other safety measures in place but the exits are locked G
preventing people from escaping. The cause of death would
in such case be the act of preventing people from exiting from
the smoke filled hall, which may depending upon whether the
act was deliberately intended to cause death or unintended due
to negligence, amount to culpable homicide amounting to H
690 SUPREME COURT REPORTS [2014] 9 S.C.R.
A murder or an act of gross negligence punishable under Section
304A. Similarly take a case where instead of four exits required
under the relevant Rules, the owner of a cinema provides only
one exit, which prevents the patrons from exiting rapidly from
the smoke filled atmosphere, the causa causans would be the
B negligent act of providing only one exit instead of four required
for the purpose.
124. It would in such circumstances make no difference
whether the fire had started from a source within the cinema
complex or outside, or whether the occupiers of the cinema
C were responsible for the fire or someone else. The important
question to ask is what the immediate cause of the death was.
If failure to exit was the immediate cause of death nothing
further need be considered for that would constitute the causa
causans. That is what happened in the case at hand. Smoke
D entered the cinema hall and the balcony but escape was
prevented or at least delayed because of breach of the
common law and statutory duty to care.
125: The second aspect is that while the rash or negligent
E act of the accused must be the causa causans for the death,
the question whether and if so what was the causa causans in
a given case, would depend upon the fact situation in which the
occurrence has taken place and the question arises. This Court
has viewed the causa causans in each decided case, in the
F facts and circumstances of that case. If Hatim's failure to stir
the hot wet paint while Rosin was being poured into it was held
to be causa causans, in Kurban Hussein's case (supra}, the
failure of the motorist to look ahead and see a pedestrian
crossing the road even when the motorist was driving within the
G speed limit prescribed was held to be the causa causans for
the death in Bhalchandra Waman Pathe v. State of
Maharashtra (supra). In Bhalchandra @ Bapu and Anr. v.
State of Maharashtra (supra) where an explosion in a factory
manufacturing crackers claimed lives, this Court found that use
H of explosives with sensitive compositions was the immediate
SUSHIL ANSAL v. STATE THROUGH CBI 691
[T.S. THAKUR, J.]
cause of the.explosion that killed those working in the factory. A
In Rustom Sherior /rani's case (supra), this Court found the new
chimney of the Bakery was being erected without the advice
of a properly qualified person and that the factory owner was
responsible for neglect that caused the explosion and not the
mason employed by him for erecting the chimney. The decision B
in Kurban Hussein's case (supra) was cited but distinguished
on facts holding that the choice of the low diameter pipe and
engaging a mere mason not properly qualified for doing the job
were the cause of the accident resulting in causalities.
126. It is in that view, not correct to say that the causa C
causans in the present case ought to be determined by
matching the colours of this case with those of Kurban
Hussein's case (supra). The ratio of that case lies not in the
peculiar facts in which the question arose but on the statement
of law which was borrowed from the judgment of Sir Lawrence D
Jenkins in Emperor v. Omkar Rampratap (supra). The
principle of law enunciated in that case is not under challenge
and indeed was fairly conceded by Mr. Salve and Mr. Tulsi.
What they argued was that when applied to the facts proved in
the present case, the causa causans was not the fire in the E
transformer but the breaches committed by the occupiers of the
cinema which prevented or at least delayed rapid dispersal of
the patrons thereby fatally affecting them because of carbon
monoxide laden gas in the smoke filling the atmosphere. The
causa causans indeed was the closure of the exit on the right F
side, the closure of the right side gangway, the failure to provide
the required number of exits, failure to provide emergency alarm
system and even emergency lights or to keep the exit signs
illuminated and to provide help to the victims when they needed
the same most, all attributable to Ansal brothers, the occupiers G
of the cinema. We have, therefore, no hesitation in rejecting the
argument of Mr. Jethmalani, which he presented with
commendable clarity, persuasive skill and tenacity at his
command.
H
692 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 127. Mr. Jethamalani next argued that since the licensing
authority had on the basis of the no objection certificates issued
by the concerned authorities granted and from time to time
renewed the Cinema licence, the appellant-Ansal brothers were
protected under Section 79 of the IPC for they in good faith
8 believed themselves to be justified in law in exhibiting films with
the seating and other arrangements sanctioned under the said
licence. Reliance in support of that submission was placed by
Mr. Jethmalani, upon the decision of this Court in Raj Kapoor
v. Laxman (1980) 2 SCC 175.
c 128. Mr. Tulsi on the contrary argued that reliance upon
Section 79 of the IPC and the decision of this Court in Raj
Kapoor's case (supra) was misplaced. He urged that immunity
from penal action under the provisions of Section 79 of the IPC
was founded on good faith which was totally absent in the case
D at hand where the occupiers of the cinema and even those who
were instrumental in the grant and renewal of the licence and
no objections were accused and even convicted by the Courts
below. There was, therefore, no question of the appellants
taking shelter under the licence, the terms whereof were in any
E case breached by them to the misfortune of those who lost their
lives in the incident.
129. Section 79 of the IPC may, at this stage, be extracted:
"Section 79. Act done by a person justified, or by
F mistake of fact believing himself justified, by law -
Nothing is an offence which is done by any person who
is justified by law, or who by reason of a mistake of fact
and not by reason of a mistake of law in good faith,
believes himself to be justified by law, in doing it."
G
130. A reading of the above shows that nothing would
constitute an offence under the IPC if the act done is:
(i) Justified in law,
H
SUSHIL ANSAL v. STATE THROUGH CBI 693
[T.S. THAKUR, J.]
(ii) The act is done by a person who by reason of a A
mistake of fact in good faith believes himself to be justified
by law in doing it.
131. In the case at hand the defence relies upon the latter
of the two situations, in which the benefit of penal immunity will 8
flow if (a) the person doing the act is acting under a mistake of
fact and (b) the person doing the act in good faith believes
himself to be justified by law in doing it. The expression 'good
faith' is defined in Section 52 of the IPC as under:
"52. "Good faith".- Nothing is said to be done or C
believed in "good faith" which is done or believed without
due care and attention."
132. In order that Ansal brothers, occupiers of the cinema
could claim the benefit of Section 79, they were required to D
prove that the belief which they harboured about their act being
justified in law was in good faith. The use of expression 'good
faith' necessarily brings in the question whether the person
concerned had acted with due care and caution. If they had not,
part (b) of Section 79 would have no application to the case.
E
133. The duty to care for the safety of the patrons, we have
explained in the earlier part, was cast upon the Ansal brothers
occupiers of the cinema both in common law as also in terms
of statutory provisions on the subject. We have also held that
the evidence adduced at the trial and the concurrent findings F
recorded by the Courts below, have, established the breach of
that duty in several respects. For instance absence of any
Public Address System to warn those inside the cinema in the
event of any emergency was in the facts and circumstances of
the case a part of the duty to care which was breached by the G
occupiers. This duty was a continuing obligation and had to be
strictly discharged in respect of each cinema show conducted
in the theatre. The grant of a licence or its renewal by the
licensing authority did not in any manner relieve the occupiers
of that obligation which was implicit even in the grant and the H
694 SUPREME COURT REPORTS [2014] 9 S.C.R.
A renewals thereof. Similarly, the requirement that the cinema
must have emergency lights, fire exti.nguishers and that the
occupiers must provide help to the patrons in the event of any
emergency ensuring rapid dispersal from the enclosed area
were obligations that too were implicit in the issue and renewal
s of the cinematograph licence. Breach of all these obligations
could not be justified on the ground that a licence was granted
or renewed in favour of the occupiers, licensee and no matter
the duty to care towards safety of the patrons was neglected
by the theatre owners or occupiers. Failures in the event of a
c mishap like the one at hand on account of failure of the
occupiers to discharge their legal obligations to take care for
the safety of the patrons cannot be held to be immune from
prosecution simply because a licence to exhibit the films had
been granted or renewed from time to time.
D 134. The argument that the seating arrangement in the
balcony, the placement of the gangways, the number and the
positioning of the exits, were matters which were examined and
approved by the concerned authority, thereby entitling the
occupiers to a bona fide and good faith belief that they were
E on the right side of law, no doubt looks attractive on first blush
bufdoes not stand closer scrutiny. The essence of Section 79
is a belief entertained in good faith about the legitimacy of what
is being done by the person concerned. Absence of good faith
is enough to deny to him the benefit that he claims. Good faith
F has in turn to be proved by reference to the attendant
circumstances. That is because good faith is a state of mind
which can be inferred only from the circumstances surrounding
the act in question. The test of ordinary prudence applied to
such proved attendant circumstances can help the Court
G determine whether an act or omission was in good faith or
otherwise. Having said that, we would simply recall our findings
recorded earlier that the fundamental obligation and duty to
care at all times rested with the occupiers of the cinema and
the licensee thereof. In the discharge of that duty the occupiers
H were not entitled to argue that so long as there was a license
SUSHIL ANSAL v. STATE THROUGH CBI 695
[T.S. THAKUR, J.]
in their favour, they would not be accountable for the loss of life A
or limb of anyone qua whom the occupiers owed that duty. The
duty to care for the safety of the patrons, even independent of
the statutory additions made to the same, required the occupiers
to take all such steps and measures, as would have ensured
quick dispersal from the cinema building of all the patrons B
inside the premises in the event of an emergency. The statutory
requirements were, in that sense, only additional safeguards
which in no way mitigated the common law duty to care, the
degree of such care or the manner in which the same was to
be discharged. c
135. That apart, a seating plan, which was in breach of the
statutory provisions and compromised the safety requirements
prescribed under the OCR 1953, could hardly support a belief
in good faith that exhibition of films with such a plan was legally
justified. That is so especially when the repeal of notification D
dated 30th September, 1976 by which Uphaar was permitted
100 more seats was followed by a demand for removal of the
additional seats. Instead of doing so the occupiers/owners
assailed that demand in Writ Petition No.1010 of 1979 before
the High Court of Delhi in which the High Court directed the E
authorities to have a fresh look from the stand point of
substantial compliance of the provisions of the Cinematograph
Act. The High Court observed:
"11. Proposition No. 3: It has been already made clear F
above that the relaxation was granted after considering
the public health and the fire hazard aspects. It is also
clear that the very fact that the relaxation could not be
granted after bearing these main considerations in mind
would show that there was some rule for the extension of G
the sitting accommodation in these theatres within the
Rules, though the provision of some of the additional
seats may perhaps have been to some extent contrary
to some of the Rules. It is not necessary for us to
speculate on this question. It is enough to say that the H
696 SUPREME COURT REPORTS [2014] 9 S.C.R.
A result of the cancellation of the relaxation is simply the
withdrawal of the relaxation. It does not automatically
mean that all the additional seats which were installed in
the cinema theatres were contrary to the Rules and must,
therefore, be dismantled without any consideration as to
B how many of these seats were in consonance with the
Rules and how many of them were contrary to the Rules.
12. Our finding on proposition No. 3 is, therefore, that the
Administration will apply their mind to the additional seats
with a view to determine which of them have contravened
c which rules and to what extent. They will bear in mind that
the compliance with the Rules is to be substantial and
not rigid and inflexible."
136. If while carrying out the above directive, the
D authorities concerned turned a blind eye to the fundamental
requirement of the Rules by ignoring the closure of the right side
exit and gangway prescribed as an essential requirement under
OCR 1953, they acted in breach of the rules and in the process
endangered the safety of the patrons. We shall presently turn
E to the question whether the repeal of the notification had the
effect of obliging the occupier/licensee of the cinema to remove
the seats and restore the gangways and exits as originally
sanctioned. But we cannot ignore the fact that the occupiers/
licensee of the cinema, had opposed the removal of the
F additional seats even when the respondents in the writ petition
had expressed concerns about the safety of the patrons if the
additional seats were not removed which removal it is evident
would have by itself resulted in the restoration of the right side
gangway. So also the authorities ought to have insisted on the
G restoration of the right side exit by removal of the eight-seater
box which was allowed in the year 1978, ostensibly because
with the right side gangway getting closed by additional seats
occupying that space the authorities considered the
continuance of the right side exit to be of no practical use.
Withdrawal of relaxation in the year 1979 ought to have resulted
H
SUSHIL ANSAL v. STATE THROUGH CBI 697
[T.S. THAKUR, J.]
in the reversal of not only the fixing of additional seats but all A
subsequent decisions that proceeded on the basis thereof. It
is difficult to appreciate how even applying the test of substantial
compliance the authorities could consider the theatre to be
compliant with the OCR 1953 especially in so far as the same
related to an important aspect like gangways and exits so very B
vital for speedy dispersal from the cinema hall. To add further
confusion to the already compromised safety situation, the
occupiers asked for addition of 15 more seats in the year 1980,
which were also allowed, taking the number of seats in the
balcony to 302, thereby, raising the requirement of exits from c
3 to 4 in terms of para 10(2) of the First Schedule to OCR 1953.
This requirement was not relaxable under proviso to Rule 3(3)
of OCR 1953 and yet the authorities gave a go by to the same
in the process, permitting yet another breach that had the
potential and did actually prove to be a safety hazard for those 0
inside the theatre on the fateful day. It is in the above backdrop
difficult to accept the submission of the appellant occupiers that
they acted in good faith and are, therefore, protected against
prosecution under Section 79 of the IPC. '
137. There is yet another angle from which the matter can E
be examined. Proviso to Section 5A of the Cinematograph Act,
1952 protects the applicant seeking issue of a certificate, the
distributor and the exhibitor as also any other person to whom
the rights in the film may have passed against punishment under
any law relating to obscenity in respect of any matter contained F
in the film for which a certificate has been granted under clauses
(a) or (b) of sub-section (1) to Section 5A. It reads:
"Provided that the applicant for the certificate, any
distributor or exhibitor or any other person to whom the G
rights in the film have passed shall not be liable for
punishment under any Jaw relating to obscenity in respect
of any matter contained in the film for which certificate has
been granted under clause (a) or clause (b)"
138. The above was added by Act 49 of 1981 with effect H
698 SUPREME COURT REPORTS [2014] 9 S.C.R.
A from 1st June. 1983. The decision in Raj Kapoor's case (supra)
relied upon by Mr. Jethmalani was earlier in point of time and
is distinguishable because the question there related to the
effect of a certificate issued under Section 5A vis-a-vis the
prosecution of the producer, director or the holder of certificate
B for obscenity punishable under Section 292 of the IPC or any
other law for that matter. The addition of proviso to Section 5A
(1) (supra) in any case sets the controversy at rest and grants
immunity to the person exhibiting a film to the public in
accordance with the certificate issued by the board. No such
c protection against prosecution is, however, available to the
holder of a cinema licence against prosecution for a rash or
negligent act resulting in the death of anyone visiting the cinema
and punishable under Section 304A of the IPC. In the absence
of any such protection against prosecution for rash or negligent
act resulting in death, unlike the protection that the statute itself
0
grants against prosecution for obscenity, is a circumstance that
strongly suggests that no such protection was intended to be
given to a licence holder against any such prosecution. The
argument that al1sence of any such protection notwithstanding
the occupiers/owners of the cinema may be protected in terms
E of Section 719 of the IPC is obviously founded on the plea that
the appellants were under a "mistake of fact" when they in good
faith believed themselves to be justified in law in exhibiting films
in the theatre, by reason of a license issued under the Act. The
plea that the appellants were under a 'mistake of fact', however,
F remains unsubstantiated. The concept of mistake of fact has
been explained by Russel on Crime in the following words:
"When a person is ignorant of the existence of relevant
facts, or mistaken as to them, his conduct may produce
G harmful results which he neither intended nor foresaw.
xxx xxx xxx
Mistake can be admitted as a defence provided (1) that
the state of things believed to exist would, if true, have
H justified the act done, and (2) the mistake must be
SUSHIL ANSAL v. STATE THROUGH CBI 699
[T.S. THAKUR, J.]
reasonable, and (3) that the mistake relates to fact and A
not to law."
139. Ratanlal and Dhirajlal in their book "Law of Crimes"
(23rd Edn.) Page 199 similarly explains the term "mistake" in
the following words: B
'"Mistake' is not mere forgetfulness. It is a slip 'made, not
by design, but by mischance'. Mistake, as the term is
used in jurisprudence, is an erroneous mental condition,
conception or conviction induced by ignorance,
misapprehension or misunderstanding of the truth, and C
resulting in some act or omission done or suffered
erroneously by one or both of the parties to a transaction,
but without its erroneous character being intended or
known at that time.
D
It may be·· 1aid down as a general rule that an
alleged offender is deemed to have acted under that
state of things which he in good faith and on reasonable
grounds believed to exist when he did the act alleged to
be an offence."
E
140. In the case at hand, the appellants-occupiers of the
cinema, have not been in a position to identify the facts qua
which they were under a mistake nor is it clear as to how any
such mistake of fact would have justified their act in law, leave
alone satisfy the third requirement of the mistake of fact being F
reasonable in nature. The three tests referred to by Russel in
the passage extracted above are not, therefore, satisfied in the
case at hand to entitle the appellant'occupiers to the benefit of
Section 79 of the IPC.
G.
141. Mr. Jethmalani next contended that the withdrawal of
notification dated 30th September, 1976 did not have the effect
of creating an obligation for the occupiers of the cinema to
remove the additional seats that had been permitted under the
said notification. In support of that submission, he placed
H
700 SUPREME COURT REPORTS [2014] 9 S.C.R.
A reliance upon Section 6 of the General Clauses Act, 1897 and
two decisions of this Court which according to him support the
proposition that the principles underlying Section 6 are
attracted even to notifications no matter Section 6 does not in
terms apply. Elaborating his submission Mr. Jethmalani
B contended that'the repeal of an enactment does not affect the
previous operation of any such enactment or anything duly done
or suffered thereunder. On the same principle withdrawal of
notification dated 30th September, 1976 could not, according
to Mr. Jethmalani, affect the previous operation of the said
C notification or anything duly done or suffered thereunder. This,
contended Mr. Jethmalani, implied that additional seats
permitted under notification dated 30th September, 1976 could
continue in the theatre, no matter the notification under which
they were permitted was withdrawn.
D 142. We regret our inability to accept that line of reasoning.
We say so for reasons more than one. In the first place Section
6 of the General Clauses Act does not, in our opinion, have any
application to repeal of any rule, notification or order. The
provision makes no reference to repeal of a rule, notification
E or order. It reads:
"6. Effect of repeal.- Where this Act, or any 1[ Central
Act] or Regulation made after the commencement of this
Act, repeals any enactment hitherto made or hereafter to
F be made, then, unless a different intention appears, the
repeal shall not-
(a) revive anything not in force or existing at the time
at which the repeal takes effect; or
G (b) affect the previous operation of any enactment so
repealed or anything duly done or suffered
thereunder; or
(c) affect any right, privilege, obligation or liability
H
SUSHIL ANSAL v. STATE THROUGH CBI 701
[T.S. THAKUR, J.]
acquired, accrued or incurred under any A
enactment so repealed; or ·
(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed
against any enactment so repealed; or 8
(e) affect any investigation, legal proceeding or
remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or
punishment as aforesaid;
c
and any such investigation, legal proceeding or remedy
may be instituted, continued or enforced, and any such
penalty, forfeiture or punishment may be imposed as if
the repealing Act or Regulation had not been passed."
D
143. It is manifest from a reading of the above that the
provision applies only to repeal by (i) the General Clauses Act
or (ii) by a Central Act or (iii) by Regulation of any enactment
hither to make or hereinafter to be made. The expressions
"Central Act" and "Regulation" appearing in Section 6 have
been defined in Sections 3(7) and 3(50) of the General Clauses E
Act, 1897 respectively as under:
"3. Definitions. - In this Act, and in all Central Acts and
Regulations made after the commencement of this Act,
unless there is anything repugnant in the subject or F
contexts, -
xxx xxx xxx
(7) "Central Act" shall means an Act of Parliament, and
shall include - G
(a) an Act of the Dominion Legislature or of the lndain
Legislature passed before the commencement of the
Constitution, and
H
702 SUPREME COURT REPORTS [2014] 9 S.C.R.
A (b) an Act made before such commencement by the
Governor General in council or the Governor General,
acting in a legislative capacity.
xxx xxx xxx
B . (50) "Regulation" shall mean a Regulation made by the
President [under article 240 of the Constitution and shall
include a Regulation made by the President under article
243 thereof and] a Regulation made by the Central
Government under the Government of India At, 1870, or
c the Government of India Act, 1915, or the Government
of India Act, 1935."
144. There is in the light of the above no gainsaying that
Section 6 does not have any application to, for instance, a rule,
0 a notification or a circular whether statutory or otherwise. It is
confined to repeal of any enactment already in existence or
made after the enactment of the General Clauses Act, 1897
by the General Clauses Act, 1952, or a Central Act or
Regulation within the meaning of those terms as defined in
E Sections 3(7) and 3(50).
145. Secondly, because the decisions in State of Orissa
and Ors. v. Titaghur Paper Mills Co. Ltd. and Anr. (1985) Supp
SCC 280 and Union of India v. Glaxo India Ltd. and Anr.
(2011) 6 SCC 668 do not extend the application of Section 6
F to statutory notifications as was sought to be argued by Mr.
Jethmalani. In Titaghur Paper Mills Co. Ltd. 's case (supra), this
Court was dealing with the supersession of notifications issued
under the Orissa Sales Tax Act on the tax liability accrued under
the repealed notification. Although this Court held that a tax
G liability that was already incurred under the repealed
notifications would remain unaffected by the repeal of the
notification the decision does not go to the extent of holding
that Section 6 of the General Clauses Act or the principle
underlying the said provisions would be attracted to such
H repeal. The reasoning for the conclusion of this Court, it
SUSHIL ANSAL v. STATE THROUGH CBI 703
[T.S. THAKUR, J.]
appears, is based on first principles more than Section 6 or A
its relevance to the question of repeal of a notification. This is
evident from the following passage from the said decision:
"66 ... By repealing and replacing the previous
notifications by other notifications, the result was not to B
wipe out any liability accrued under the previous
notifications. If this contention of the Respondents were
to be accepted, the result would be startling. It would
mean, for example, that when a notification has been
issued under Section 5(1) prescribing a rate of tax, and C
that notification is later superseded by another
notification further enhancing the rate of tax, all tax
liability under the earlier notification is wiped out and no
tax can be collected by the State Government in respect
of any transactions effected during the period when the
earlier notification was in force." D
146. In Glaxo India Ltd. 's case (supra), all that this Court
declared was that the effect of a superseding notification would
have to be determined on a proper construction of the
notification itself and not by any single principle or legal E
consideration. The decision mentioned Section 6 of the
General Clauses Act only to state that it would not apply to
notifications. This is evident from the following passage from
the said decision:
F
"39 ... The view of this Court in some of the decisions is
that the expression "supersession" has to be understood
to amount 'to repeal' and when notification is repealed,
the provisions of Section 6 of the General Clauses Act
would not applv to notifications. The question whether
statutory obligations subsist in respect of a period prior G
to repeal of a provision of a Statute or any subordinate
legislation promulgated thereunder has to be ascertained
on legal considerations apposite to the particular context.
The matter is essentially one of construction. Such
H
704 SUPREME COURT REPORTS (2014] 9 S.C.R.
A problems do not admit of being answered on the basis
of any single principle or legal consideration."
(emphasis supplied)
147. Thirdly, because the effect of withdrawal of the
B notification in the instant case may have to be seen and
determined on first principles. We find it difficult to appreciate
how the power to withdraw a notification, the existence whereof
was not disputed by Mr. Jethmalani would remain meaningful
and could be effectively exercised if the withdrawal of such a
C notification was to leave the benefit under the notification
flowing in perpetuity. The notification in question permitted
additional seats to be fixed in relaxation of the rules and, if the
argument of Mr. Jethmalani was to be accepted, such relaxation
and fixation of seats would become irreversible even when the
D Government could legitimately exercise the power to recall such
a relaxation. This would be anomalous and would have the
effect of emasculating the power of recall itself. The power
would be meaningful and so also its exercise, only if the same
could undo whatever had already been done under it
E prospectively: Such an interpretation would not only recognize
the power of withdrawal but also protect the previous operation
of the repealed notification no matter limited to the extent that
the occupiers had benefitted by fixation of such seats and
collection of the price of the tickets sold upto the date of
F withdrawal.
148. Last but not the least is the fact that the question
whether withdrawal of notification dated 30th September, 1976
would have the effect of obliging the occupiers to remove the
additional seats could and ought to have been argued before
G the High Court in the writ petition filed by the occupiers/owners
of cinema hall, in lsherdas Sahni & Bros and Anr. v. The Delhi
Administration and Ors. AIR 1980 Delhi 147. No such
contention was, however, urged before the High Court in
support of the challenge to the demand for the removal of the
H seats which demand was based entirely on assumption that the
SUSHIL ANSAL v. STATE THROUGH CBI 705
[TS. THAKUR, J.]
withdrawal of the notification has had the effect of obliging the A
owners/occupiers to restore status quo ante. The High Court
took the view that recall of the notification would call for a review
qua each cinema hall to determine whether the continuance of
the seats was substantially compliant with OCR, 1953. The
High Court accordingly directed the authorities concerned to B
have a fresh look applying the test of substantial compliance
while determining the liability of the owners/occupiers to remove
the additional seats. The occupiers accepted that direction. An
exercise was accordingly undertaken though in our view,
unsatisfactorily, for the authorities con.cerned failed to look into c
the safety requirements which ought to have been given
foremost importance in any such process. The least, therefore,
that can be said is that the argument that no obligation arose
to remove the additional seats by reason of the repeal of the
notification dated 30th September, 1976 is untenable not only 0
on merits, but also because the same is no longer available in
view of what has been stated above, and the fact that the
question stands concluded by the judgment of this Court in
lsherdas Sahni's case (supra).
149. We may at this stage deal with a threefold E
submission made by Mr. Jethmalani. He contended that the
appellant Ansal Brothers were entitled to assume that the
licensing authority had done its duty and satisfied itself about
the premises being adequately safe for those visiting the same.
Reliance in support of the submission was made by Mr. F
Jethmalani upon the English decisions in Green v. Fibreglass
Ltd. 1958 (2) QBD 245, Gee v. The Metropolitan Railway
Company 1873 VIII Q.B. 161 and Grant v. Sun Shipping Co.
Ltd. and Anr. 1948 AC 549.
G
150. The second limb of Mr. Jethmalani's contention was
that having delegated their duties to persons like R.M. Puri
whole-time Director and the Managers employed for ensuring
safety of those visiting the cinema, the Ansal brothers were
entitled to assume that those incharge of their duties would
H
706 SUPREME COURT REPORTS [2014] 9 S.C.R.
A faithfully and effectively discharge the same in a prudent
manner. The employers of such employees could not be held
vicariously liable under the I PC for the failure of the latter to do
what was enjoined upon them in terms of the duties attached
to their employment. Support for that proposition wa~ drawn by
8 Mr. Jethmalani from the English decision in Haze/dine v. C.A.
Daw and Son Ltd. and Ors. (1941) 2 KB 343. The third limb of
the argument of the learned counsel was that having convicted
and sentenced the gatekeeper for the offence punishable under
Section 304-A, the High Court could not hold the Ansals guilty
C or punish them for the same offence since there is no vicarious
liability in criminal law.
151. In Gee v. The Metropolitan Railway Company
(supra), a train passenger leant on the door of a railway
carriage believing it to have been properly fastened, when in
D fact it was not. This resulted in the door flying open and the
passenger getting thrown out of the carriage. The question was
whether there was any contributory negligence on the part of
the train passenger. The Court held that the passenger was
entitled to assume that the door had been properly fastened
E and that the accident had been caused by the defendants'
negligence. The Court observed:
"Because I am of opinion that any passenger in a railway
carriage, who rises for the purpose either of looking out
of the window, or dealing with, and touching, and bringing
F
his body in contact with the door for any lawful purpose
whatsoever, has a right to assume, and is justified in
assuming, that the door is properly fastened; and if by
reason of its not being properly fastened his lawful act
causes the door to fly open, the accident is caused by
G the defendants' negligence."
152. The above decision was affirmed by the House of
Lords in Grant v. Sun Shipping Co. Ltd. and Anr. (supra) where
an injury was caused to a stevedore on a ship when he wrongly
H assumed that no hatch was left uncovered and unlit and
SUSHIL ANSAL v. STATE THROUGH CBI 707
[TS. THAKUR, J.]
therefore fell into the hatch. The Court in that case also was A
concerned with the question of contributory negligence. It is
noteworthy that the Court qualified the principle stated in Gee
v. The Metropolitan Railway Company's case (supra) by
holding. that a prudent man would guard against the possible
negligence of others when experience shows such negligence B
to be common.
153. In Green v. Fibreglass Ltd. (supra), a cleaning lady
was injured due to faulty wiring on the premises where she was
invited to work. It was held that the occupiers of the premises C
should be taken to have discharged their duty to the plaintiff as
inviters by employing competent electrical contractors and by
taking the precaution of rewiring the premises before they
began to occupy the same. If some act was to be performed
which called for special knowledge and experience which the
inviter could not be expected to possess, he fulfilled his duty of D
care by employing a qualified and reputable expert to do the
work.
154. It appears from a reading of the above cases that the
principle that an occupier is entitled to assume that others have E
done their duty is applicable, provided that experience has not
revealed to him that the negligence of others is common, nor
did he at any time have reason to believe that his premises was
unsafe. It is difficult for the occupiers in the present case to
argue that they did not have reason to believe that the premises F
was unsafe, given the occurrence of a similar fire in 1989, as
well as the number of occasions on which defects in their
premises had been pointed out to them. Moreover, although
Section 12 of the Cinematograph Act did require the licensing
authority to take in to account substantial compliance with the G
rules, as well as existence of adequate safety precautions in
the premises, Rule 10(1) of OCR, 1953 unambiguously cast the
responsibility for maintaining such compliance and safety upon
the occupier. The Act and Rules are silent regarding the
consequences to be faced by a licensing authority who does
H
708 SUPREME COURT REPORTS [2014) 9 S.C.R.
A not fulfill his duty, however, Section 14 of the Cinematograph
Act imposes a penalty on the occupier of a licensed premises
who violates the conditions of the cinema license. One such
condition in the present case was compliance with the First
Schedule of the DCR, 1953. Therefore, this is not a situation
B where the law treats the occupier as an ignorant person who
requires experts to verify the safety of his premises. Rather, the
Act places an independent obligation upon him to maintain
compliance with the rules, irrespective of the assessment of the
public authorities.
c 155. It is, therefore, difficult to accept the argument that the
occupiers in the present case blindly accepted the assessment
of the inspecting and licensing authorities. If that were to be
true, they ought not to have resisted the removal of 43 extra
seats in the balcony as ordered by the licensing authority
D pursuant to the withdrawal of the 1976 notification, and they
ought not to have failed to cure the defects in their premises
pointed out by the MCD after the inspection in 1983.
156. Reliance by Mr. Jethmalani upon the decision in
E Hazeldine's case (supra) to support the second limb of his
argument is also, in our view, misplaced. That was a case,
where the landlord had employed a firm of engineers to adjust,
clean and lubricate the machinery of the lift once every month,
to repack the glands when needed and to report to him if any
F repairs were needed. An employee of the engineers engaged
for the purpose repacked one of the glands but failed to replace
it properly thereby causing the gland to fracture when the lift was
worked and an accident in which the plaintiff was injured. The
Court held that the landlord had discharged his obligation to
G keep the lift reasonably safe by employing a competent firm of
engineers. The owner of the lift was not, observed the Court,
aware of any defect or danger in operating the lift.
157. The fact situation in the case at hand is entirely
different. Here the duty to care for the safety of the invitees lies
H upon the occupiers not only under the common law but even
SUSHIL ANSAL v. STATE THROUGH CBI 709
[T.S. THAKUR, J.]
under the statutory enactment. More importantly, the occupiers A
have, as seen in the earlier parts of this judgment, been aware
at all material times, of the statutory requirements and
deviations which were repeatedly pointed out by the authorities
concerned as a safety hazard for the patrons of the cinema
theatre. The staff employed by the occupiers had no role to play B
in these deviations or their removal. There is nothing on record
to suggest that the occupiers had issued instructions to the staff
to have the deviations and breaches remo~ed and/or corrected,
or that those instructions were not complied with by the latter
resulting in the fire incident that claimed human lives. Unlike in c
Hazeldine's case (supra), the occupiers had not done all that
could and ought to have been done by them to avert any tragedy
in connection with the use of an unsafe premises frequented
by the public for entertainment.
158. Equally untenable is the argument that since the D
gatekeeper of the balcony has been found guilty and sentenced
to imprisonment, the occupiers must be held to be innocent.
The argument is an attempt to over-simplify the legal position
ignoring the factual matrix in which the prosecution was
launched and the appellants found guilty. If the appellants have E
indeed committed gross negligence resulting in the death of a
large number of innocents, they cannot argue that just because
one of those found to be equally rash or negligent had been
convicted for the very same offence they must be held to be
not at fault. F
159. Mr. Jethmalani next argued that the charges framed
against the accused-appellants, Sushil and Gopal Ansal were
defective inasmuch as the same did not specify the days or
period when the offence took place nor even indicate the G
statutory provisions, rules and regulations allegedly violated by
the appellants or accuse the appellants of gross negligence
which alone could constitute an offence under Section 304A
IPC. These defects, contended the learned counsel, had
caused prejudice to the appellants in their defence and ought
H
to vitiate the trial and result in their acquittal. A similar
710 SUPREME COURT REPORTS [2014] 9 S.C.R.
A contention, it appears, was urged by the appellants even before
the High Court who has referred to the charges framed against
the appellants at some length and discussed the law on the
point by reference to Sections 211, 215 and Section 464 of
the Cr.P.C. to hold that the charges were reasonably clear and
B that no prejudice in any case had been caused to the appellants
to warrant interference with the trial or the conviction of the
appellants on that ground. Reliance in support was placed by
the High Court upon the decision of this Court in Willie (William)
Slaney v. State of Madhya Pradesh (Al R 1956 SC 116) and
c several later decisions that have reiterated the legal position
on the subject. There is in our opinion no error in the view taken
by the High Court in this regard. Section 464 of the Cr.P.C.
comple\ely answers the contention urged on behalf of the
appellant?. It in no uncertain terms provides that an error,
omission or irregularity in the charge including any misjoinder
0
of charges shall not invalidate any sentence or order passed
by a Court of competent jurisdiction unless in the opinion of a
Court of appeal, confirmation or revision a failure of justice has
in fact been occasioned thereby. The language employed in
E Section 464 is so plain that the same does not require any .
elaboration as to the approach to be adopted by the Court.
Even so the pronouncements of this Court not only in Slaney's
case (supra) but in a long line of subsequent decisions place
the matter beyond the pale of any further deliberation on the
subject. See K.C. Mathew v. State of Travancore-Cochin
F AIR 1956 SC 241, Gurbachan Singh v. State of Punjab AIR
1957 SC 823, Eirichh Bhuian v. State of Bihar AIR 1963 SC
1120, State of Maharashtra v. Ramdas Shrinivas Nayak
AIR 1982 SC 1249, Lal/an Rai v. State of Bihar (2003) 1 SCC
268 and State (NCT of Delhi) v. Navjot Sandhu (2005) 11
G sec 600.
160. In Slaney's case (supra) Vivian Bose, J. speaking .for
the Court observed:
"5... What it narrows down to is this. Is the charge to be
H
SUSHIL ANSAL v. STATE THROUGH CBI 711
[T.S. THAKUR, J.]
regarded as a ritualistic formula so sacred and A
fundamental that a total absence of one, or any
departure in it from the strict and technical
requirements of the Code, is so vital as to cut at
the root of the trial and vitiate it from the start, or
is it one of many regulations designed to ensure B
a fair and proper trial so that substantial, as
opposed to purely technical, compliance with the
spirit and requirements of the Code in this behalf
is enough to cure departures from the strict letter
of the law? c
6. Before we proceed to set out our answer and
examine the provisi_ons of the Code, we will pause
to observe that the Code is a code of procedure
and, like all procedural laws, is designed to further
the ends of justice and not to frustrate them by the D
introduction of endless technicalities. The object
of the Code is to ensure that an accused person
gets a full and fair trial along certain we/1-
established and we/I-understood lines that accord
with our notions of natural justice. If he does, if he E
is tried by a competent court, if he is told and
clearly understands the nature of the offence for
which he is being tried, if the case against him is
fully and fairly explained to him and he is afforded
a full and fair opportunity of defending himself, F
then, provided there is substantial compliance with
the outward forms of the law, mere mistakes in
procedure, mere inconsequential errors and
omissions in the trial are regarded as venal by the
Code and the trial is not vitiated unless the G
accused can show substantial prejudice. That,
broadly speaking, is the basic principle on which
the Code is based... "
161. To the same effect are the subsequent decisions of H
712 SUPREME COURT REPORTS (2014] 9 S.C.R.
A this Court to which we have referred to above. Applying the test
laid down in the said cases we have no hesitation in holding
that there was nothing fundamentally wrong with the charges
framed against the appellants nor have the appellants been able
to demonstrate that they suffered any prejudice on account of
B the alleged defects. The High Court has in our opinion taken a
correct view on the question urged before which does not call
for any interference.
162. It was also contended by Mr. Jethmalani that all such
C incriminating circumstances as have been used against the
appellants were not put to the accused. The High Court has
while dealing with a similar contention urged before it carefully
examined the case of each appellant and found no merit in
them. That apart we have been taken through the statements
made by the accused under Section 313 Cr.P.C. and find that
D the same have comprehensively put the circumstances
appearing against the appellants to them and thereby given
them an opportunity to explain the same. Besides, so long as
there is no prejudice demonstrated by the appellants on
account of any deficiency in the statements, there is no question
E of this Court interfering with the concurrent judgments and
orders of the Courts below.
163. We may at this stage simply refer to the decision of
this Court in Jai Dev v. State of Punjab AIR 1963 SC 612,
F where P.B. Gajendragadkar, J. (as His Lordship then was)
speaking for a three-Judge Bench explained the purpose
underlying the statement under Section 342 (now Section 313
Cr.P.C.) in the following words:
"The ultimate test in determining whether or not the
G accused has been fairly examined under Section 342
would be to enquire whether, having regard to all the
questions put to him, he did get an opportunity to say
. what he wanted to say in respect of prosecution case
against him. If it appears that the examination of the
H accused person was defective and thereby a prejudice
SUSHIL ANSAL v. STATE THROUGH CBI 713
[T.S. THAKUR, J.]
has been caused to him, that would no doubt be a serious A
infirmity."
164. We may also refer to the decision of this Court in
Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2
SCC 793, where this Court declared that an omission in the B
statement under Section 313 does not ipso facto vitiate the
proceedings and that prejudice oecasioned by such defect
must be established by the accused. The following passage is
in this regard apposite:
"It is t,-ite law, nevertheless fundamental, that the C
prisoner's attention should be drawn to every incu/patory
material so as to enable him to explain it. This is the basic
fairness of a criminal trial and failures in this area may
gravely imperil the validity of the trial itself, if
consequential miscarriage of justice has flowed. However, D
where such an omission has occurred it does not ipso
facto vitiate the proceedings and prejudice occasioned
by such defect must be established by the accused. In
the event of evidentiary material not being put to the
accused, the court must ordinarily eschew such material E
from consideration. It is a/so open to the appellate court
to call upon the counsel for the accused to show what
explanation the accused has as regards the
circumstances established against him but not put to him
and if the accused is unable to offer the appellate court F
any plausible or reasonable explanation of such
circumstances, the Court may assume that no acceptable
answer exists and that even if the accused had been
questioned at the proper time in the trial court he would
not have been able to furnish any good ground to get out G
of the circumstances on which the trial court had relied
for its conviction. In such a case, the Court proceeds on
· the footing that though a grave irregularity has occurred
as regards compliance with Section 342 Cr.P.C. the
omission has nofbeen shown to have been caused
H
prejudice to the accused."
714 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 165. To the same effect is the decision of this Court in
State (Delhi Admn.) v. Dharampal (2001) 10 SCC 372 and
Bakhshish Singh v. State of Punjab AIR 1967 SC 752.
166. Suffice it to say that the circumstances appearing
against the accused persons have been elaborately put to them
8
under Section 313 Cr.P.C. The contention that the appellants
suffered any prejudice on account of a given circumstance not
having put to them has, in our opinion, no merit and is
accordingly rejected.
C 166A. In the light of the above discussion, we see no reason
to interfere with the judgments and orders of the Courts below in
so far as the same have convicted appellant-Ansal brothers for
offences under Sections 304A, 337, 338 read with Section 36
IPC and Section 14 of the Cinematograph Act, 1952.
D
167. As regards the conviction of Divisional Fire Officer,
H. S. Panwar (A 15) assailed in Criminal Appeal No.599/2010,
the trial Court has on a reappraisal of the evidence adduced
at tt:ie trial found that the said accused had acted in a grossly
E rash and negligent manner in issuing No Objection Certificates
without carrying out a proper inspection of the cinema hall from
the fire safety angle, resulting in issue of temporary permits in
favour of the theatre which directly resulted in the death of 59
persons in the incident in question. The trial Court observed:
F "Accused H. S. Panwar acted with gross negligence by
recommending 'No Objection certificate' without fulfilling
requirements of law and without carrying out inspection
of the cinema hall building from fire safety point of view,
resulting in the issuance of temporary permits and on the
G basis of the same exhibition of films, which action
resulted into the death of the patrons inside the cinema
hall on the day of the incident. The accused committed
breach of duty by omitting to point out the fire hazards
and deficiencies in fire fighting measures in the cinema
H building, which act amounts to culpable negligence on
SUSHIL ANSAL v. STATE THROUGH CBI 715
[T.S. THAKUR, J.]
his part. The act of accused can also be described as A
'culpable rashness' since being an officer from the office
of Chief Fire Officer. he was conscious that the intended
consequences would surelv ensure. The accused by,
omitting to do his lawful duties committed gross
negligence and rashness which was the direct and B
proximate cause of the death of 59 persons. Accordingly,
the accused H. S. Panwar is held guilty for the offence
under Section 304A /PC read with section 36 /PC. The
accused is also held guilty for the injury to the patrons
in the cinema hall for the offence under section 337 and c
338 /PC."
(emphasis supplied)
168. The above finding was affirmed by the High Court in
the following words with a reduction in his sentence: D
"... Concerning accused H. S. Pan war, the negligent and
careless inspection carried out by him has been held to
be a significant and direct cause of the accident, which
took away lives of innocent people, and grievously E
injured several others. His vigil could have prevented the
fire clearance certificate. If he had displayed the same
zeal that he did in November, 1996, when the inspection
report did not yield a no objection? (sic) There would
have been a greater scrutiny of the fire safety norms.
Instead, he certified that fire safety norms had been F
complied with, whereas in actuality they were not. No
doubt, he has served the Delhi Fire Service for a long
time; according to the trial court judgment, he was 68
years when the impugned judgment was pronounced. He
is also a recipient of commendations. On a conspectus G
of all these circumstances, the court is of the opinion that
ends of justice would be served if the sentence is
reduced to rigorous imprisonment for one year and
Rs. 50001- under section 304-A. The default sentence in
his case is also modified to simple imprisonment for two H
716 SUPREME COURT REPORTS [2014] 9 S.C.R.
A months. The conviction by the trial court is therefore
maintained and to the above extent .... "
169. Mr. Mehrotra, learned counsel for the appellant H.S.
Panwar made a two-fold submission in support of his appeal.
Firstly he argued that according to the standard practice
8
prevalent in the Fire Department the appellant H.S. Panwar then
Divisional Fire Officer was required to give a report in terms
of the proforma prescribed for the purpose. This was according
to the learned counsel evident from the deposition of Shri G.D.
Verma (PW 37) the then Chief Fire Officer. He urged that even
C earlier inspections had been made on the basis of the very
same proforma, which was correctly filled up by the appellant
furnishing the requisite information demanded in the proforma.
170. Secondly it was contended by Mr. Mehrotra that the
D Victims' Association had claimed compensation from the
management of the theatre as well as MCD Delhi Fire Service,
in which case the High Court had exonerated Delhi Fire
Service. That finding had attained finality as the same was not
challenged by the Association. This, argued the learned
E counsel, implied that the Fire Service or its officers were not
at fault for the occurrence in question, a circumstance which
could and ought to be kept in view.
171. There is, in our opinion, no merit in either one of the
submissions made by Mr. Mehrotra. Clearance by the Fire
F Department·was, it is common ground, an essential pre-
requisite for the grant of a license, its renewal or the issue of a
temporary permit for exhibition of the films in any cinema hall.
This clearance could be granted only if the officers concerned
were fully satisfied after an inspection of the cinema premises
G that the same was indeed safe for use as a place for exhibition
of cinematographs. Anyone discharging that important function
had to be extremely vigilant as, any neglect on his part could
allow an unsafe premises being used resulting in serious
consequences as in the present case. Far from being vigilant
H and careful about the inspection, H.S. Panwar grossly neglecJed
SUSHIL ANSAL v. STATE THROUGH CBI 717
[T.S. THAKUR, J.]
the duty cast upon him, resulting in the issue of temporary A
permits, which contributed to the causa causans of the incident.
It is in the circumstances no defence for the appellant-H.S.
Panwar to plead that he was asked to report only according to
the proforma furnished to him. As a senior and experienced
officer in the Fire Service Department, he ought to have known B
the purpose of his inspection and the care he was required to
take in the interest of the safety of hundreds, if not thousands
of cine-goers who thron·g to such public places for
entertainment. In as much as he failed to do so, and issued a
certificate which compromised the safety requirements and c
endangered human lives resulting directly in the loss of a large
number of them, he has been rightly found guilty.
172. So also the second limb of Mr. Mehrotra's submission
is in our opinion without any substance. The question whether
the appellant H.S. Panwar was grossly negligent resulting in the D
loss of valuable human lives has to be determined on the basis
of the evidence on record in the present case and not on the
basis of findings which the High Court may have held in a
summary proceedings for payment of compensation to the
victims and their families recorded under Article 226 of the E
constitution. The evidence in the case at hand has been
appraised by the two Courts below and found to establish the
charge of negligence against the appellant. There is, in our
opinion, no compelling reason for us to take a different view in
the matter especially when we do not see any miscarriage of F
justice or perversity in the reasoning adopted by the trial Court
and the High Court.
173. It brings us to Criminal Appeals No.617-627 of 2010
and 604 of 2010 filed by B.M. Satija (A-9) and Bir Singh (A- G
11) respectively. They were together with A.K. Gera (A-10)
charged with commission of offences punishable under
Sections 304 read with Section 36 of the IPC. The trial Court,
as already noticed in the earlier part of this judgment, held all
the three accused persons mentioned above guilty of the
H
718 SUPREME COURT REPORTS [2014] 9 S.C.R.
A offence with which they were charged and sentenced them to
undergo rigorous imprisonment for a period of seven years
besides a fine of Rs.5000/- and six months imprisonment in
default. In criminal appeals filed by the three accused persons,
the High Court has converted the conviction from Section 304
B Part II to Sections 304A, 337 and 338 read with Section 36 of
the IPC in so far as B.M. Satija (A-9) and Bir Singh (A-11) are
concerned, while acquitting A.K. Gera (A-10) of the charge. The
High Court has further reduced the sentence awarded to the
appellants B.M. Satija (A-9) and Bir Singh (A-11) from seven
c years rigorous imprisonment to two years and a fine of Rs.2000/
- each for the offence under Section 304-A, rigorous
imprisonment for six months with fine of Rs.500/- for the offence
under Section 337, IPC and rigorous imprisonment for one year,
with fine of Rs.1000/- for the offence under Section 338, IPC.
0 While appellants B.M. Satija (A-9) and Bir Singh (A-11) have
assailed their conviction and sentence before us, the CBI has
challenged the acquittal of A.K. Gera (A-10) in Criminal
Appeals No.605-616 of 2010.
174. Appearing for appellant-B.M. Satija, Mr. V.V. Giri,
E learned senior counsel argued that the appellant was not one
of those deputed to attend to the complaint about the
malfunctioning of the DVB transformer on the morning of 13th
June, 1997. He submitted that evidence adduced by the
prosecution regarding his presence and association with the
F process of rectification was sketchy and did not prove beyond
a reasonable doubt his presence on the spot. He made an
attempt to persuade us to reverse the concurrent findings of fact
recorded by two Courts below in this regard and drew our
attention to the depositions of P.C. Bhardwaj (PW-40), V.K
G Gupta (PW-43) and Bhagwandeen (PW-44) as also the
documents marked Ex. PW-40/C, 40/A and 40/P. He urged that
the CFSL report recording the signatures sent for examination
did not lend any support to the prosecution case.
175. Mr. Gopal Singh, Senior Counsel appearing for A.K.
H
SUSHIL ANSAL v. STATE THROUGH CBI 719
[T.S. THAKUR, J.]
Gera (A-9) respondent in CBl's Criminal Appeal No.605-616 A
of 2010 contended that the order passed by the High Court
was based on appreciation of the evidence adduced by the trial
Court and that interference with any such order of acquittal is
rare unless it is found to be patently perverse. He urged that
his client A.K. Gera (A-9) was not posted in the concerned zone B
in which the DVB transformer was installed. He had nothing to
do with this act. The trial Court and the High Court have both
concurrently held that the repairs of the DVB transformer were
carried out by Bir Singh (A-11) and B.M. Satija A(-9). That
finding is without any perversity. The High Court has relying upon c
the depositions of P.C. Bhardwaj (PW-40) and Bhagwandeen
(PW-44) observed:
"14.12 So far as role of the accused B.M. Satija and Bir
Singh are concerned, PW-40 P. C. Bhardwaj deposed
having informed B. M. Satija about the morning D
complaint. PW-44 deposed that all 3, i.e., Gera, Satija
and Bir Singh were instrumental in repairing of the DVB
transformer at Uphaar in the morning of 13.6.1997.
Expert evidence in the form of PW-35/A; Ex.PW36/A all
established that the cause of fire was improper crimping E
of the cable end with the socket which ultimately
detached at the crucial time, resulted in intense sparking,
settling down of the cable on the transformer which
resulted in a slit; transformer oil gushed out, caught fire
and spread to the parking area resulting in the improperly F
parked vehicles catching fire.
14.13 xxxxx
14.14 The depositions of other witnesses assume
importance. PW-40 clearly mentioned that he had G
discussed the complaint with Satija and chalked out the
programme. PW/44 clearly deposed having
accompanied Satija, Bir Singh and Gera to the relevant
site at Uphar and witnessing the repairs with the aid of
dye and hammer. At one place, he mentioned that Bir H
720' SUPREME COURT REPORTS [2014] 9 S.C.R.
A Singh carried out the repair under the supervision of both
the officers, in another place of his deposition, he
mentioned that Bir Singh 's work was supervised by Satija."
176. The above findings do not in our view suffer from any
B perversity or any miscarriage of justice or call for interference
under appeal in this connection under Article 136 of the
Constitution of India. Even in regard to A.K. Gera (A-9), the
High Court has held that he was present on the spot but in the
absence of any further evidence to prove the role played by him,
C the High Court considered it unsafe to convict him for
imprisonment:
"On an overall conspectus of the above facts, this Court
is of opinion that though Gera's presence at site stands
established, in the absence of fuller evidence about the
D role played by him, there can be no presumption that he
played any part in-. the defective repairs, carried out
without the aid of thf! crimping machine on the Uphaar
DVB transformer. Mere presence when that cannot lead
to presumption of involvement of an actor who is not
E expected to play any role and is insufficient, in the
opinion of the Court, to saddle criminal liability of the kind
envisioned under Section 304-A. To establish that Gera
had a duty to care tq ensure that notwithstanding the
defective crimping· carried out by the employees
F competent to do so and that he had an overriding
responsibility of objecting to the work done by them,
without proving whether he was there during the entire
operation and if so_how the extent of his involvement, the
conviction for causing death due to criminal negligence
cannot be arrived at. Although, there are circumstances
G
which point to Gera's presence, they may even amount
to suspicion of the role played by him, yet such evidence
proved are insufficient to prove the case against him
beyond reasonable doubt. In the circumstances, neither
can be he convicted under Section 304 Part-II, nor under
H Section 304-A read with 3371338 and 36 /PC."
SUSHIL ANSAL v. STATE THROUGH CBI 721
[TS. THAKUR, J.]
177. In fairness to Mr. Salve, learned counsel appearing A
for the CBI, we must mention that he did not seriously assail
the above reasoning given by the High Court. At any rate, the
view taken by the High Court is a possible view. We see no
compelling reason to interfere with that view in the facts and
circumstances of the case. Having said that, the question B
remains whether the High Court was justified in convicting
appellants Bir Singh (A-11) and B.M. Satija (A-9) for the offence
of causing death by rashness and gross negligence, punishable
under sections 304A of the IPC.
178. In our view, the causa causans for the death of 59 C
persons was their inability to quickly exit from the balcony area
for reasons we have already indicated. That being so, even
when the repairs carried out by Bir Singh (A-11) and B.M. Satija
(A-9) may have been found to be unsatisfactory for the reasons
given by the trial Court and the High Court, which we have D
affirmed, the fire resulting from such poor repair was no more
than causa sine qua non for the deaths and, therefore, did not
constitute an offence punishable under Section 304A of the IPC.
Besides, the negligence of the occupiers of the cinema having
intervened between the negligence of these two officials of the E
DVB and the deaths that occurred in the incident, the causal
connection between the deaths and act of shabby repair of the
installation of the DVB transformer is not established directly.
179. The conviction of these two appellants under Section F
304A cannot, therefore, be sustained. That would, however, not
affect their conviction under Sections 337 and 338 read with
Section 36 of the IPC which would remain unaffected and is
hereby affirmed.
180. Question No.1 is accordingly answered on the above G
lines.
Re: Question No.II:
181. The charge framed against N.S. Chopra (A-6) and
H
722 SUPREME COURT REPORTS [2014] 9 S.C.R.
A other Managers of Uphaar Cinema was one for commission
of the offence punishable under Section 304 Part II read with
Section 36 of the IPC. The allegation made against the
Managers was that even when they were present on the
premises at the time of the incident, they had failed to either
B warn the patrons or facilitate their escape. They instead fled
the scene despite the knowledge that death was likely to be
caused by their acts of omission and commission. The Trial
Court had found the charge proved and convicted and
sentenced N.S. Chopra to undergo imprisonment for a period
c of seven years besides a fine of Rs.5,0001- and imprisonment
for six months in default of payment. The High Court reversed
that view qua N.S. Chopra and also R.K. Sharma (A-5) (since
deceased). The High Court acquitted them of the charges for
reasons which it summed up in the following words:
D "10. 11 Section 304, first part requires proof of intention
to cause death or such bodily harm as would cause
death; the second part requires proof that knowledge
existed that such injury would result in death, or grievous
injury likely to result in death. The crucial aspect in both
E cases, is the state of mind, i.e "intention" or "knowledge"
of the consequence. Proof of such intention or knowledge
has to be necessarily, of a high order; all other
hypotheses of innocence of the accused, have to be ruled
out. The prosecution here. glaringly has not proved when
F these two accused fled the cinema hall: there is no
eyewitness testifying to their having been in the balcony
when the smoke entered the hall, and having left it, which
could have proved knowledge of the likely deaths and
grievous bodily injuries. Thus, this court is of the opinion
G that proof of these appellants, i.e N.S. Chopra and R.K.
Sharma, having committed the offence under Section
304, is not forthcoming. Their conviction under that
provision cannot, therefore, be sustained."
(emphasis supplied)
H
SUSHIL ANSAL v. STATE THROUGH CBI 723
[TS. THAKUR, J.]
182. The High Court also examined whether N.S. Chopra A
and R.K. Sharma could be convicted under Section 304A IPC,
and answered that question in the negative. The High Court was
of the view that the prosecution had failed to establish that N.S.
Chopra was present on the scene and also that the
documentary evidence adduced at the trial proved that he had B
not reported for duty on the fateful day. The High Court
observed:
"10. 13 As far as R. K Sharma is concerned, the evidence
establishes that he had reported tor duty ... N.S. Chopra, C
on the other hand, according to the documentarv
evidence (Ex. PW-108108-1. found in Ex.PW97/CJ had
not reported for dutv. In his statement under Section 313,
he mentioned having reached the cinema hall at 5-30
PM, and not being allowed inside. since the fire was
raging in the building. D
xx xx xx
10. 17 The totality of the above circumstances no doubt
points to complete managerial and supervisory failure in
E
the cinema. Such inaction is certainly culpable, and
points to grave /apses. This undoubtedly was an
important and significant part of the causation chain. Yet,
to convict the accused R.K. Sharma and N.C. Chopra,
there should be more convincing proof of involvement.
At best. there is evidence of suspicion of their F
involvement. Yet, no attempt to prove that they were
present. and did not take any effective measures to
evacuate the patrons. which they were bound to do, in the
normal course of their duty. has been made. Mere proof
that these accused were Assistant Manager. and G
Manager, as on the date of the accident. and that one of
them had reported earlier. during the day, is not adequate
to prove that they caused death by criminally negligent.
or rash act. There was failure on the part of the trial court
to notice that the two vital aspects, i.e duty and breach, of H
724 SUPREME COURT REPORTS (2014] 9 S.C.R.
A that duty of such scale, as to amount to an offence. Their
appeals are entitled to succeed. These appellants have
to, therefore, be acquitted of the charges. Their conviction
is consequently set aside."
(emphasis supplied)
B
183. In fairness to Mr. Salve and Mr. Tulsi, we must say
that no serious attempt was made by them to demolish the
reasoning adopted by the High Court in coming to its
conclusion. That apart, the view taken by the High Court on a
C fair appreciation of the evidence, both oral and documentary,
does not even otherwise call for any interference by us as the
same is a reasonably possible view.
184. Coming then to the acquittal of S.S. Sharma (A-13)
0 and N.D. Tiwari (A-14), Administrative Officers, MCD, the
charges framed against the said two accused persons were
for offonces punishable under Section 304A, 337 and 338 read
with Section 36 IPC. The allegation levelled against them was
that they negligently issued No Objection certificates to Uphaar
Cinema in the years 1995-96 and 1996-97 without so much as
E conducting inspections of the premises, and thereby committed
a breach of the Cinematograph Act and the Rules made
thereunder. The Trial Court found that charge established and
accordingly convicted and sentenced both the accused persons
to undergo imprisonment for a period of two years and a fine
F of Rs.5,000/- for the offence punishable under Section 304A,
six months for the offence punishable under Section 337 and
two years under Section 338 of the Code. The High Court has
in appeal reversed the conviction and the sentences awarded
to the accused persons on the reasoning that it summed up in
G the following words:
"13.6 The prosecution, in order to succeed in its charge
of accused Mr. S.S. Sharma and Mr. N.D. Tiwari having
acted with criminal negligence and caused death and
H serious injury, should have first established the duty of
SUSHIL ANSAL v. STATE THROUGH CBI 725
[lS. THAKUR, J.]
care either through some enacted law 'like OCR, 1953 or A
OCR, 1981 or a general duty discernable in their normal
course of official functions. In addition, the prosecution
should have established breach of such duty would have
resulted in a foreseeable damage and death to or in
grievous injury to several persons. Unlike in the case of B
the Fire Department. the Licensing Department or the
Electrical Inspectorate. all of whom are named authorities
empowered to inspect the premises. there is no role
assigned to Administrative Officers of the MCD. The
rationale for obtaining 'no objections' from these officers c
has been left unexplained. The prosecution has failed to
establish the necessity for such No Objection Certificate
and how without such document. by the Administrative
Officers of MCD. the licensing authoritv. DCP (Licensing)
would not have issued the temporary permit. Ex. 22/A, 0
the letter by the licensing department is in fact addressed
to the Building department, MCD.
xx xx xx
13. 8 The materials on record nowhere disclose how, even E
if it were assumed that Mr. S.S. Sharma and Mr. N.O.
Tiwari breached their duties of care, the breach was of
such magnitude as would have inevitably led to death or
grievous injury to several persons and that such
consequence was reasonably foreseeable by them when F
they issued No Objection Certificates. No doubt, the
issuance of No Objection Certificates and handing them
over to the beneficiary directly was a careless, even
callous act. It was also used to be placed on the record
as a prelude to the issuance of the permits. But in the G
absence of clearly discernable duty of care and the
magnitude of foreseeable damage by these accused,
this Court cannot affirm the findings of the Trial Court and
their conviction.
H
-
726 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 13. 9 The appeals of Mr. S.S. Sharma and Mr. N. 0. Tiwari
are, therefore, entitled to succeed."
(emphasis supplied)
185. There was no serious argument advanced by either
B Mr. Salve, appearing for the CBI or Mr. Tulsi for assailing the
correctness of the view taken by the High Court in appeal and
rightly so because the High Court has, in our opinion, taken a
fairly reasonable view which is in tune with the evidence on
record. There is, in our opinion, no room for our interference
C even with this part of the order passed by the High Court by
which it acquitted S.S. Sharma and N. D. Tiwari, Administrative
Officers of the MCD. Our answer to Question No.II is in the
affirmative.
D Re: Question No.Ill:
186. The Trial Court had framed charges against the
accused persons by an order dated 9th April, 2001 by which
Sushi! and Gopal Ansal were charged with commission of
offence punishable under Section 304A, 337 and 338 read with
E Section 36 IPC. Against that order framing charges the
Association of Victims of Uphaar Tragedy (AVUT) filed
Criminal Revision No.270 of 2001 before the Delhi High Court
to contend that a charge under Section 304 IPC also ought to
have been framed against the said two accused persons. The
F case of the association was that there was overwhelming
evidence on record to establish the charge. That revision
eventually failed and was dismissed by the High Court by its
order dated 11th September, 2001 (Sushi/ Ansal v. State
Through CBI etc. etc. 1995 (2002) DLT 623). Revision
G petitions filed by other accused persons against the order of
framing charges were also dismissed by the High Court by the
very same order. Dealing with the contention urged on behalf
of the AVUT the High Court observed:
"34. The plea of Association of Victims of Uphaar
SUSHIL ANSAL v. STATE THROUGH CBI 727
[T.S. THAKUR, J.]
Tragedy to frame charges under Section 304 /PC against A
accused Sh. Sushi/ Ansal and Sh. Gopal Ansal, in
addition to the charges already framed against them,
cannot be sustained in as much as prima facie a case
of negligence only is made out against them. The
a/legations against them gross negligence, wanton B
carelessness and callous indifference in regard to the
up-keep and maintenance of the cinema. Had rapid
dispersal facilities been available to the patrons in the
balcony, no death or injury could have taken place and
as such, this Court is of the considered view that there c
are no good and sufficient grounds for slapping a charge
under Section 304 /PC against these two accused."
187. What is significant is that AVUT did not bring up the
matter to this Court against the above order passed by the High
Court. On the contrary, Sushil Ansal appears to have filed a D
special leave petition in this Court challenging the dismissal of
the revision petition by the High Court which was subsequently
dismissed as withdrawn by this Court by order dated 12th April,
2002. The result was that the trial commenced against the Ansal
brothers on the basis of the charges framed by the Trial Court. E
188. The AVUT during the course of the trial made another
attempt to have the charge under Section 304 IPC framed .
against the Ansal brothers by moving an application before the
Trial Court to that effect. The Trial Court, however, disposed of F
that application stating that if it found sufficient evidence against
the Ansal brothers justifying a charge under Section 304 IPC
or any other person for that matter, it would take action suo
moto for framing such a charge. Final judgment of the Trial
Court was delivered on 20th November, 2007 in which it G
convicted Ansal brothers of the offence under Section 304A of
the IPC, which clearly meant that the Trial Court had not found
any reason to frame any additional charge against them under
Section 304 IPC.
H
728 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 189. Aggrieved by the omission of the Trial Court to frame
a charge under Section 304 IPC, AVUT filed a revision petition
before the High Court which too was dismissed by the High
Court with the observation that their earlier revision petition
framing charges under Sections 304, 337 and 338 read with
B Section 36 having been dismissed by the High Court, the said
order had become final, especially when the revisionist AVUT
did not carry the matter further to this Court. The High Court
also held that the appeal against the conviction of the Ansal
brothers having been disposed of, there was no question of
c framing any charge for a graver offence in the absence of any
evidence unequivocally establishing that such a charge was
made out and yet had not been framed. The High Court held
that procedure for misjoinder of charges under Section 216
applied during the stage of trial, whereas AVUT was asking for
a remand of the matter for a retrial on the fresh charge under
0
Section 304 Part II, which was not permissible under the
scheme of the Code. The High Court also rejected the
contention that Ansal brothers could be convicted for an offence
graver than what they were charged with.
E 190. In the appeal filed by AVUT against the order passed
by the High Court in the above revision petition, they have
agitated the very same issue before us. Appearing for the
Victims Association, Mr. Tulsi argued that the acts of omission
and commission of Ansal brothers by which the egress of the
F patrons was obstructed warranted a conviction not merely for
the offence punishable under Section 304A IPC but also for the
offence punishable under Section 304 Part II since according
to the learned counsel the said acts were committed with the
knowledge that death was likely to result thereby. Mr. Tulsi in
G partipular contended that the act of installing an eight-seater box
that entirely blocked the right-side exit in the balcony was itself
sufficient for the Court to order a retrial of the Ansal brothers,
since they knew by such an act they were likely to cause death
of the patrons in the event of a fire incident. On that premise,
ho contended that the matter should be remanded back to the
SUS'HIL ANSAL v. STATE THROUGH CBI 729
[T.S. THAKUR, J.]
Trial Court for retrial for cpmmission of the offence punishable A
under Section 304 Part II. In support of the contention that the
fact situation in the case at hand established a case under ·
Section 304 Part 11, Mr. Tulsi placed reliance on the decision
of this Court in Alister Anthony Pereira v. State of Maharashtra
(2012) 2 sec 648 where this Court was dealing with an B
inebriated driver, driving under the influence of alcohol causing
the death of people on the footpath. He contended that this
Court had in that fact situation held that by driving recklessly
under the influence of alcohol the driver knew that he can
thereby kill someone. Anyone causing death must be deemed c
to have had the knowledge that his act of omission and
commission was likely to result in the loss of human lives.
191. Mr. Ram Jethmalani, learned counsel for Ansal
brothers on the other hand placed reliance upon the decision
of this Court in Keshub Mahindra v. State of M.P. (1996) 6 D
sec 129 and argued that a case where a person in a drunken
state of mind drives a vehicle recklessly is completely
distinguishable from the case at hand and that the fact situations
are not comparable in the least. On the contrary in the case of
Keshub Mahindra (supra), this Court has clearly repelled the E
contention that the charge under Section 304 Part II would be
maintained against those handling the plant from which the lethal
MIC gas had leaked to cause what is known as the infamous
Bhopal Gas Tragedy in which thousands of human beings lost
their lives. If this Court did not find a case under Section 304 F
Part II made out in a case where the tragedy had left thousands
dead, the question of the present unfortunate incident being
treated as one under Section 304 Part II did not arise,
contended Mr. Jethmalani.
G
192. In Alister Anthony Pereira's case (supra), the
accused was driving in an inebriated condition when he ran
over a number of labourers sleeping on the pavement, killing
seven of them. The Tripi Court convicted the accused under
Sections 304A and 337 IPC but acquitted him under Section
H
730 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 304 Part II and 338 IPC. The Bombay High Court set aside the
acquittal and convicted the accused for offences under Sections
304 Part II, 337 and 338 IPC. This Court affirmed the said
judgment of the High Court and while doing so explained the
distinction between the offence under Section 304A and that
B punishable under Section 304 Part II IPC. This Court observed:
"47. Each case obviously has to be decided on its own
facts. In a case where negligence or rashness is the
cause of death and nothing more, Section 304A may be
attracted but where the rash or negligent act is preceded
c with the knowledge that such act is likely to cause death,
Section 304 Part II Indian Penal Code may be attracted
and if such a rash and negligent act is preceded by real
intention on the part of the wrong doer to cause death,
offence may be punishable under Section 302 Indian
D Penal Code."
193. This Court went on to hold that the accused in the
above case could be said to have had the knowledge that his
act of reckless driving in an inebriated condition was likely to
E cause death. This Court observed:
"41. Rash or negligent driving on a public road with the
knowledge of the dangerous character and the likely
effect of the act and resulting in death may fall in the
category of culpable homicide not amounting to murder.
F A person, doing an act of rash or negligent driving, if
aware of a risk that a particular consequence is likely to
result and that result occurs, may be held guilty not only
of the act but also of the result. As a matter of law - in
view of the provisions of the Indian Penal Code - the
G cases which fall within last clause of Section 299 but not
within clause 'fourthly' of Section 300 may cover the cases
of rash or negligent act done with the knowledge of the
likelihood of its dangerous consequences and may entail
punishment under Section 304 Part I/ Indian Penal Code.
H Section 304A Indian Penal Code takes out of its ambit
SUSHIL ANSAL v. STATE THROUGH CBI 731
[T.S. THAKUR, J.]
the cases of death of any person by doing any rash or A
negligent act amounting to culpable homicide of either
description.
xx xx xx
78. We have a/so carefully considered the evidence let B
in by prosecution - the substance of which has been
referred to above - and we find no justifiable ground to
take a view different from that of the High Court. We agree
with the conclusions of the High Court and have no
hesitation in holding that the evidence and materials on C
record prove beyond reasonable doubt that the Appellant
can be attributed with knowledge that his act of driving
the vehicle at a high speed in the rash or negligent
manner was dangerous enough and he knew that one
result would very likely be that people who were asleep D
on the pavement may be hit. should the vehicle go out
of control."
(emphasis supplied)
194. In State through PS Lodhi Colony, New Delhi v. E
Sanjeev Nanda (2012) 8 SCC 450, six bystanders were killed
when the accused, driving recklessly under the influence of
alcohol ran them over. The accused was also shown to have
gotten out of the vehicle after the incident, inspected the
gruesome damage and thereafter driven away. While the trial F
Court convicted the accused under Section 304 Part II, IPC,
the Delhi High Court altered the conviction to one under Section
304A on the ground that knowledge of causing death was not
made out. This Court allowed the appeal against this decision
and held the offence of culpable homicide not amounting to G
murder to have been made out. The reasoning behind the
Court's conclusion that the accused had the knowledge that
death was likely to be caused was based on the facts of the
case and the presumption that was drawn in Alister Anthony
H
732 SUPREME COURT REPORTS [2014] 9 S.C.R.
A (supra) against drunken drivers in hit and run cases. K.S.P.
Radhakrishnan, J. speaking for this Court observed as follows:
"The principle mentioned by this Court in Alister Anthony
Pereira (supra) indicates that the person must be
presumed to have had the knowledge that, his act of
B
driving the vehicle without a licence in a high speed after
consuming liquor beyond the permissible limit, is likely
or sufficient in the ordinary course of nature to cause
death of the pedestrians on the road. In our view, Alister
Anthony Pareira (supra) judgment calls for no
c reconsideration. Assuming that Shri Ram Jethmalani is
right in contending that while he was driving the vehicle
in a drunken state, he had no intention or knowledge that
his action was likely to cause death of six human beings,
in our view, at least, immediately after having hit so many
D human beings and the bodies scattered around, he had
the knowledge that his action was likely to cause death
of so many human beings, lying on the road unattended.
To say, still he had no knowledge about his action is too
childish which no reasonable man can accept as worthy
E of consideration. So far as this case is concerned, it has
been brought out in evidence that the accused was in an
inebriated state, after consuming excessive alcohol, he
was driving the vehicle without licence, in a rash and
negligent manner in a high speed which resulted in the
F death of six persons. The accused had sufficient
knowledge that his action was likely to cause death and
such an action would, in the facts and circumstances of
this case fall under Section 304(11) of the Indian Penal
Code and the trial court has rightly held so and the High
G Court has committed an error in converting the offence
to Section 304A of the Indian Penal Code."
195. What emerges from the two cases referred to above
is that:
H a. Each case must be decided on its own facts to
SUSHIL ANSAL v. STATE THROUGH CBI 733
[T.S. THAKUR, J.]
determine whether such knowledge did in fact A
precede the rash/negligent act.
b. What converts a case apparently falling under
Section 304A into one under Section 304 Part II is
the knowledge that the act is likely to cause death".
B
c. Where the act which causes death is the act
of driving a vehicle in a rash and reckless manner
and in an inebriated state after consuming liquor,
the accused may be attributed the knowledge that
such act was likely to cause death of others using c
the road.
196. The decision in Alister Anthony Pereira's case
(supra) or that delivered in Sanjeev Nanda's case (supra) does
not lay down any specific test for determining whether the
accused had the knowledge that his act was likely to cause D
death. The decisions simply accept the proposition that drunken
driving in an inebriated state, under the influence of alcohol
would give rise to an inference that the person so driving had
the knowledge that his act was likely to cause death. The fact
situation in the case at hand is not comparable to a case of E
drunken driving in an inebriated state. The case at hand is more
akin on facts to Keshub Mahindra's case (supra) where this
Court was dealing with the question whether a case under
Section 304 part II was made out against the management of
Union Carbide India Ltd., whose negligence had resulted in F
highly toxic MIC gas escaping from the plant at Bhopal. The trial
Court in that case had framed a charge against the
management of the company for commission of an offence
under Section 304 Part II, IPC, which was upheld by the High
Court in revision. This Court, however, set aside the order G
framing the charge under Section 304 Part II and directed that
charges be framed under Section 304A, IPC instead. This
Court observed:
"20 ... The entire material which the prosecution relied
upon before the Trail Court for framing the charge and H·
734 SUPREME COURT REPORTS [2014] 9 S.C.R.
A to which we have made a detailed reference earlier, in
our view, cannot support such a charge unless it indicates
prima facie that on that fateful night when the plant was
run at Bhopal it was run by the concerned accused with
the knowledge that such running of the plant was likely
B to cause deaths of human beings. It cannot be disputed
that mere act of running a plant as per the permission
granted by the authorities would not be a criminal act.
Even assuming that it was a defective plant and it was
dealing with a v·_.y toxic and hazardous substance like
c MIC the mere act of storing such a material by the
accused in Tank No. 610 could not even prima facie
suggest that the concerned accused thereby had
knowledge that they were likely to cause death of human
beings. In fairness to the prosecution it was not suggested
and could not be suggested that the accused had an
D
intention to kill any human being while operating the
plant. Similarlv on the aforesaid material placed on
record it could not be even prima facie suggested bv the
prosecution that anv of the accused had a knowledge that
by operating the plant on that fateful night whereat such
E
dangerous and highly volatile substance like MIC was
stored they had the knowledge that by this verv act itself
they were likely to cause death of any human being.
Consequently in our view taking entire material as
aforesaid on its face value and assuming it to represent
F the correct factual position in connection with the
operation of the plant at Bhopal on that fateful night it
could not be said that the said material even prima facie
called for framing of a charge against the concerned
accused under Section 304 Part II, /PC on the specious
G plea that the said act of the accused amounted to
culpable homicide only because the operation of the
plant on that night ultimately resulted in deaths of a
number of human beings and cattle ... "
(emphasis supplied)
H
SUSHIL ANSAL v. STATE THROUGH CBI 735
[TS. THAKUR, J.]
197. At the same time, the Court held that there was A
enough evidence to prima facie establish that the accused
management had committed an offence under Section 304A
and observed that the evidence assembled by the prosecution
suggested that structural and operational defects in the working
of the plant was the direct and proximate cause of death: B
"21 ... It cannot be disputed that because of the operation
of the defective plant at Bhopal on that fateful night a
highly dangerous and volatile substance like MIC got
converted into poisonous gas which snuffed off the lives C
of thousands of human beings and maimed other
thousands and killed number of animals and that all
happened, as seen at least prima facie by the material
led by the prosecution on record,· because of rash and
negligent act on the part of the accused who were in-
charge of the plant at Bhopal. Even though, therefore, D
these accused cannot be charged for offences under
Section 304 Part II the material led agciinst them by the
prosecution at least prima facie showed that the accused
were guilty of rash or negligent acts not amounting to
culpable homicide and by that act caused death of large E
number of persons ... In this connection we must observe
that the material led by the prosecution to which we have
made a detailed reference earlier prima facie shows that
there were not only structural defects but even operational
defects in the working of the plant on that fateful night F
which resulted into this grim tragedy. Consequently a
prima facie case is made out for framing charges under
Section 304A against the concerned accused ... "
198. It is noteworthy that an attempt was made by the CBI
G
and State of Mpdhya Pradesh to have the above order recalled
and set aside by way of a curative petition which failed with the
dismissal of the petition by a five-Judge Bench of this Court
(See C.B.I. and Ors. etc. v. Keshub Mahindra etc. (2011) 6
sec 216).
H
736 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 199. We may at this stage refer to Section 464 of the
Code of Criminal Procedure which deals with the effect of the
omission to frame or absence of, or error in the framing of
charge and inter-alia provides that no finding, sentence or order
by a Court of competent jurisdiction shall be deemed invalid
B merely on the ground that no charge was framed or on the
ground of any error, omission or irregularity in the charge
including any misjoinder of charges, unless, in the opinion of
the Court of appeal, confirmation or revision, a failure of justice
has in fact been occasioned thereby. It is only if the Court of
c appeal, confirmation or revision is of opinion that a failure of
justice has in fact been occasioned that it may in the case of
an omission to frame a charge, order that a charge be framed
and that the trial be recommenced from the point immediately
after the framing of the charge. The omission to frame a charge
is, therefore, by itself not enough for the Court of appeal,
0
confirmation or revision to direct the framing of the charge.
What is essential for doing so is that the Court of appeal in
revision or confirmation must record a finding to the effect that
failure of justice has in fact been occasioned on account of the
non-framing of charge.
E
200. The expression 'failure of justice' is not defined, no
matter the expression is very often used in the realm of both
civil and criminal jurisprudence. In Shamnsaheb M. Multtani
v. State of Karnataka (2001) 2 SCC 577 this Court while
F dealing with that expression sounded a note of caution and
described the expression as an etymological chameleon. That
simile was borrowed from Lord Dip/ock's opinion in Town
Investments Ltd. v. Department of the Environment 1977 (1)
All E.R. 813. This Court held that the criminal court, particularly
G the superior court should make a close examination to ascertain
whether there was really a failure of justice or whether it is only
a camouflage.
201. Mr. Tulsi, learned counsel for the victims' association
was unable to satisfactorily demonstrate any failure of justice
H
SUSHIL ANSAL v. STATE THROUGH CBI 737
[T.S. THAKUR, J.]
not only because there was no evidence strongly suggestive A
of the accused persons having had the knowledge that their
acts of omission and commission were likely to cause death
but also because failure of justice cannot be viewed in isolation
and independent of the prejudice that the accused persons may
suffer on account of inordinate delay 1n the completion of the B
trial or what may result from an indefinite procrastination of the
matter by a remand to the trial Court. That speedy justice is a
virtue recognised an integral and essential part of the
fundamental right to· life under Article 21 of the Constitution is
well settled by a long line of decisions of this Court including c
the three-Judge Bench decision in Hussainara Khatoon and
Ors. v. Home Secretary, State of Bihar,. Patna (.1980) 1 SCC
81 reiterated in A.R. Antulay v. R:S. Nayak (1992) 1 SCC 225.
This Court in the latter \jase summed up the nature of the
prejudice caused to an accused by a protracted trial in the 0
following words:
"3. The concerns underlying the Right to speedy trial
from the point of view of the accused are:
(a) The period of remand and pre-conviction .detention E
should be as short as possible. In other words, the
accused should not be subjected .to unnecessary
·or unduly long incarceration
. .prior to his conviction;
(b) The worry, anxiety, expense and disturbance to his F
vocation and peace, resulting from an unduly
prolonged investigation, inquiry or trial should be
minimal; and
(c) Undue delay may well result in impairment of the
ability of the accused to defend .himself, whether G
on account of death, disappearance or non-
availability of witnesses or otherwise"
202. The Court undertook a comprehensive review ~f the
earlier decisions in which a remand for a fresh trial was H
738 SUPREME COURT REPORTS [2014] 9 S.C.R.
A considered inappropriate and unfair to the accused persons
having regard to the intervening delay. The following passage
is in this regard apposite:
"41. In Machander v. State of Hyderabad 1955 CriLJ
1644, this Court observed that while it is incumbent on
B
the court to see that no guilty person escapes, it is still
more its duty to see that justice is not delayed and
accused persons are not indefinitely harassed. The
scales, the court observed, must be held even between
the prosecution and the accused. In the facts of that case,
c the court refused to order trial on account of the time
already spent and other relevant circumstances of that
case. In Veerbhadra v. Ramaswamy Naickar 1958 CriLJ
1565, this Court refused to send back proceedings on
the ground that already a period of five years has elapsed
D and it would not be just and proper in the circumstances
of the case to continue the proceedings after such a
lapse of time. Similarly, in Chajju Ram v. Radhey
Sham {1971] S.C.R. 172, the court refused to direct a re-
trial after a period of 10 years having regard to the facts
E and circumstances of the case. In State of U.P. v. Kapil
Deo Shukla 1972 CriLJ 1214, though the court found the
acquittal of the accused unsustainable, it refused to order
a remand or direct a trial after a lapse of 20 years. It is,
thus, clear that even apart from Article 21 courts in this
F country have been cognizant of undue delays in criminal
matters and wherever there was inordinate delay or where
the proceedings were pending for too long and any further
proceedings were deemed to be oppressive and
unwarranted, they were put an end to by making
G appropriate orders."
203. In Machander's case referred to in the above
passage, this Court had summed up the position as follows:
• ... We are not prepared to keep persons who are on trial
H for their lives under indefinite suspense because trial
SUSHIL ANSAL v. STATE THROUGH CBI 739
[T.S. THAKUR, J.]
judges omit to do their duty. Justice is not one-sided. It A
has many facets and we have to draw a nice balance
between conflicting rights and duties. While it is
incumbent on us to see that the guilty do not escape it
is even more necessary to see that persons accused of
crime are not indefinitely harassed. They must be given B
a fair and impartial trial and while every reasonable
latitude must be given to those concerned with the
detections of crime and entrusted with the administration
of justice, limits must be placed on the lengths to which
they may go.
c
Except in clear cases of guilt, where the error is purely
technical, the forces that are arrayed against the accused
should no more be permitted in special appeal to repair
the effects of their bungling than an accused should be
permitted to repairs gaps in his defence which he could D
and ought to have made good in the lower courts. The
sea/es of justice must be kept on an even balance
whether for the accused or against him, whether in favour
of the State or not; and one broad rule must apply in all
cases ... " E
(emphasis supplied)
204. So also in Ramaswamy Naickar's case relied upon
by this Court in the above passage, a fresh inquiry into the
complaint after five years was considered inappropriate. This F
Court observed:
" ... But the question still remains whether, even after
expressing our strong disagreement with the
interpretation of the Section by the courts below, this G
Court should direct a further inquiry into the complaint.
which has stood dismissed for the last about 5 years. The
action complained of against the accused persons. if
true. was foolish. to put it mildly, but as the case has
become stale, we do not direct further inquiry into this H
740 SUPREME COURT REPORTS [2014] 9 S.C.R.
A complaint. If there is a recurrence of such a foolish
behaviour on the part of any Section of the community,
we have no doubt that those charged with the duty of
maintaining law and order, will apply the law in the sense
in which we have interpreted the law. The appeal is
8 therefore, dismissed ... "
(emphasis supplied)
205. To the same effect is the decision of this Court in
Kantilal Chandulal Mehta v. The State of Maharashtra and
C Anr. (1969) 3 SCC 166 where this Court observed:
" ... In our view the Criminal Procedure Code gives ample
power' to the courts to alter or amend a charge whether
by the trial court or by the appellate court provided that
the accused has not face a charge for a new offence or
D
is not prejudiced either by keeping him in the dark about
that charge or in not giving a full opportunity of meeting
it and putting forward any defence open to him, on the
charge finally preferred against him ... "
E 206. The incident in the case at hand occurred about 16
years ago. To frame a charge for a new offence and remand
the matter back for the accused to face a prolonged trial again
does not appear to us to be a reasonable proposition. We say
so independent of the finding that we have recorded that the
F fact situation the case at hand .does not suggest that the
accused Ansal brothers or any one of them, had the knowledge
that their acts of omission or commission was likely to cause
death of any human being. Question No.3 is accordingly
answered in the negative.
G Re: Question No.IV:
207. We have, in the earlier part of this judgment, while
dealing with Question No.I, examined the scope of criminal
appeals by special leave and observed that this Court may
H interfere in such appeals only where wrong inferences of law
SUSHIL ANSAL v. STATE THROUbH CBI 741
[T.S. THAKUR, J.]
have been drawn from facts proved before the Courts or where A
the conclusions drawn by the High Court are perverse and
based on no evidence whatsoever. The scope of interference
by this Court with the quantum of punishment awarded by the
High Court is also similarly limited to cases where the sentence
awarded is manifestly inadequate and where the Court B
considers such reduced punishment to be tantamount to failure
of justice. This can be best illustrated by reference to cases in
which this Court has interfered to either enhance the punishment
awarded by the High Court or remitted the matter back to the
High Court for a fresh order on the subject. c
208. In Sham Sunder v. Puran and Anr. (1990) 4 SCC
731, the High Court had converted a conviction for an offence
under Section 302 to that under Section 304 Part I and reduced
the sentence to the period already undergone (less than six
months) where the accused had inflicted repeated blows with D
a sharp-edged weapon on the chest of the deceased, and later
on vital parts like the head, back and shoulders after he fell to
the ground in a sudden fight. This Court found the reduced
sentence imposed by the High Court to be grossly inadequate
and held that it amounted to a failure of justice. Enhancing the E
sentence to five years imprisonment. this Court observed:
"3. It is true that the High Court is entitled to reappraise
the evidence in the case. It is also true that under Article
136, the Supreme Court does not ordinarily reappraise F
the evidence for itself for determining whether or not the
.High Court has come to a correct conclusion on facts but
where the High Court has completelv missed the real
point requiring determination and has also on erroneous
grounds discredited the evidence ... the Supreme Court G
would be justified in going into the evidence for the
purpose of satisfying itself that grave injustice has not
resulted in the case.
xx xx xx
H
742 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 8. The High Court has reduced the sentence to the term
of imprisonment already undergone while enhancing the
fine. It is pointed out that the respondents have
undergone only imprisonment for a short period of Jess
than six months and,· in a grave crime like this, the
B sentence awarded is rather inadequate ... The sentence
imposed by the High Court appears to be so grossly and
entirely inadequate as to involve a failure of justice. We
are of opinion that to meet the ends of justice, the
sentence has to be enhanced."
c (emphasis supplied)
209. In Oeo Narain Manda/ v. State of Uttar Pradesh
(2004) 7 sec 257, the trial Court had awarded a maximum
sentence of two years rigorous imprisonment for an offence
D punishable under Section 365, IPC. The High Court reduced
the sentence to the period undergone (forty days). A three-
Judge Bench of this Court intervened on the ground that the
sentence awarded was wholly disproportionate to the crime
and substituted a sentence of six months rigorous
E imprisonment. The Court held as follows:
"8. This brings us to the next question in regard to the
reduction of sentence made by the High Court. In criminal
cases awarding of sentence is not a mere formality.
Where the statute has given the court a choice of
F sentence with maximum and minimum limit presented
then an element of discretion is vested with the court. This
discretion cannot be exercised arbitrarily or whimsically.
It will have to be exercised taking into consideration the
gravity of offence, the manner in which it is committed,
G the age, the sex of the accused, in other words the
sentence to be awarded will have to be considered in the
background of the fact of each case and the court while
doing so should bear in mind the principle of
proportionality. The sentence awarded should be neither
H excessively harsh nor ridiculously low.
SUSHIL ANSAL v. STATE THROUGH CBI 743
[T.S. THAKUR, J.]
xx xx xx A
10. The High Court in this case without even noticing the
fact what is the actual sentence undergone by the
appellant pursuant to his conviction awarded by the Trial
Court proceeded to reduce the same to the period
already undergone with an added sentences of fine as 8
stated above. Of course, the High Court by the impugned
order recorded that the facts and circumstances of the
case as well as age, character and other antecedents of
the appellant which made the court feel that the ~nds of
justice would be met if the sentence is reduced and C
modified. This conclusion of the High Court for reducing
the sentence in our considered view is wholly
disproportionate to the offence of which the appellant is
found guilty.
D
11 ... On facts and circumstances of this case, we must
hold that sentence of 40 days for an offence punishable
under Section 3651511 read with Section 149 is wholly
inadequate and disproportionate.
12. For the reasons stated above, we are of the opinion E
that the judgment of the High Court, so far as it pertains
to the reduction of sentence awarded by the Trial Court
will have to be set aside."
(emphasis supplied) F
210. Similarly in State of UP. v. Shri Kishan (2005) 10
sec 420 this Court intervened when a sentence of seven years
rigorous imprisonment awarded by the trial Court for an offence
punishable under Section 304 Part II, IPC was reduced by the G
High Court to the period already undergone, without regard to
the period actually served by the accused. This Court directed
the High Court to re-hear the appeal on the question of sentence
keeping in mind the principles on sentencing laid down by this
Court in State of Madhya Pradesh v. Ghanshyam Singh
H
744 SUPREME COURT REPORTS [2014] 9 S.C.R.
A (2003) 8 SCC 13 that the sentence must be proportionate to
the offence committed and sentence ought not to be reduced
merely on account of long pendency of the matter.
211. In State of M.P. v. Sangram and Ors. AIR 2006 SC
48 a three-Judge Bench of this Court remanded the matter to
8 the High Court for fresh dispbsal without going into the merits
of the case, when it found that the High Court had reduced a
sentence for an offence under Section 307 IPC from seven
years rigorous imprisonment to the period already undergone
(ten months and five days) by a short and cryptic judgment:
c
"... Learned counsel for the appellant has submitted that
the sentence imposed by the High Court is wholly
inadequate looking to the nature of the offence. The High
Court has not assigned any satisfactory reason for
D reducing the sentence to less than one year. That apart,
the High Court has written a very short and cryptic
judgment. To say the least, the appeal has been
disposed of in a most unsatisfactory .manner exhibiting
complete non-application of mind. .There is absolutely no
consideration of the evidence adduced by the
parties... Since the judgment of the High Court is not in
accordance with law, we have no option but to set aside
the same and to remit the matter back to the H!gh Court
for a fresh consideration of the appeal... "
F 212. It is manifest from the above that while exercising
extra-ordinary jurisdiction under Article 136 of.t.he Constitution
this Court has not acted like an ordinary Appellate Court but
has. 'confined its interference only to such rarest of rare .
situations in which .the sentence ?Warded is so incomm.ensurate
G with the gravity of the.offence that it amounts.to failure of justice ..
As. a matter offact in Deo Narain Mandal's case (supra) while
this Cour:t fqund the sentence a·warded to be wholly·
disproportionate to gravity of the offence, this Court consid~red .:
imprisonment for a period of six months to be sufficient for an
H
SUSHIL ANSAL v. STATE THROUGH CBI 745
[T.S. THAKUR, J.]
offence which is punishable by a maximum term of two years A
rigorous imprisonment. Award of sentence of one year rigorous
imprisonment for an offence where maximum sentence
prescribed extends to two years cannot, therefore, be said t)
be inadequate to call for interference by this Court under Article
136 of the Constitution. B
213. Having said that we must notice certain additional and
peculiar features of this case. First and foremost is the fact that
Mr. Salve, learned counsel for CBI, did not, in the course of his
submissions, urge that the sentence awarded by the High Court C
to Ansals was inadequate. This is in contrast to the grounds
urged in the memo of appeal by the CBI where the inadequacy
of sentence was also assailed. In the absence of any attempt
leave alone a serious one by the State acting through CBI to
question the correctness of the view taken by the High Court
on the quantum of sentence we would consider the ground D
taken in the memo of appeal to have been abandoned at the
Bar.
I
214. The seconct_and an equally important consideration
that would weigh with any Court is the question of prolonged E
trial that the accused have faced and the delay of more than
sixteen years in the conclusion of the proceedings against them.
We have in the earlier part of our order referred to the decision
of a three-Judge Bench of this Court in Hussainara Khatoon
case (supra) where this Court declared the right to speedy trial F
to be implicit in Article 21 of the Constitution. Such being the
case delay has been often made a basis for the award of a
reduced sentence, as for instance in Balaram Swain v. State
of Orissa 1991 Supp (1) SCC 510 this Court reduced the
sentence from one year rigorous imprisonment to the period G
undergone (less than six months) on the ground that there was
a delay of twenty three years involving long mental agony and
heavy expenditure for the accused. So also in M.O.
Shamsudhin ·v. State of Kera/a (1995) 3 SCC 351 sentence
was reduced by this Court from two years rigorous H
746 SUPREME COURT REPORTS [2014] 9 S.C.R.
A imprisonment to the period undergone on the , ground of delay
of eight years. There is no reason why in the case at hand the
delayed conclusion of the proceedings should not have been
1aken by the High Court as a ground for reduced sentence of
one year.
B
215. The third circumstance which dissuades us from
interfering with the sentence awarded by the High Court is the
fact that the appellant-Ansals did not have any criminal
background and are both senior citizens, whose company has
already been adjudged liable to pay compensation to the
C victims besides punitive damages award~d against them. This
Court has in MCD, Delhi v. AVUT (supra) arising out of a writ
petition seeking compensation for the victims and their families
awarded compensation @ Rs.10 lakhs in the case of death of
those aged more than 20 years and 7.5 lakhs in the case of
D those aged 20 years and less besides compensation o(Rs.1
lakh to those injured in the incident with interest@ 9% p.a. and
punitive dall)ages of Rs.25 lakhs. There is no dispute ttfat the
amount;aw~rded by the High Court has been deposited by-the
A11sal Theaters & Clubotels (P) Ltd. in the proportion in which
E the claim has been awarded. The award so made is in tune
with the spirit of the view taken by this Court in Ankush Shivaji
Gaikwad v. State of Maharashtra (2013) 6 SCC 770 where this
Court noted a global paradigm shift away from retributive justice
towards victimology or restitution in criminal law. There is no
F gainsaying that in the absence of the order passed by this Court
in MCD, Delhi v. A VUT (supra), we may have ourselves
determined the compensation payable to the victims and
awarded the-same against Ansal brothers. Any such exercise
is rendered unnecessary by the said decision especially
G because a reading of sub-section (5) of Section 357 of the
c·r.P.C. makes it manifest that compensation awarded by a
Criminal Court under Section 357 cannot be more than the sum
that may be payable or recovered as compensation in a
subsequent civil suit. That provision was interpreted by this
H Court in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. (2007)
SUSHIL ANSAL v. STATE THROUGH CBI 747
[T.S. THAKUR, J.]
6 sec 528 to hold that the amount of compensation under A
Section 357 should ordinarily be less than the amount which
can be granted by a civil Court upon appreciation of the
evidence brought before it for losses that it may have
reasonably suffered.
B
216. For all that we have stated above we do not see any
merit in the contention of Mr. Tulsi that the punishment awarded
to the Ansal brothers ought to be enhanced either because
there is an allegation against them for tampering with the
Court's record or because there is a complaint pe,nding against C
them before the learned ACMM in which Ansat' brothers and
their so called henchmen are accused of having intimidated and
threatened the President of the Victims' Association. There is
no gainsaying that both these matters are pending adjudication
by the competent criminal Court and any observation as to the
truthfulness of the allegations made therein will not only be D
inappropriate but also prejudicial to one or the other party. So
also the argument that the Ansal brothers having persistently
lied about their association with the company does not, in our
opinion, outweigh the considerations that we have indicated
hereinabove while upholding the view taken by the High Court E
on the question of sentence. We need to remind ourselves that
award of punishment in a case where guilt of the accused is
proved, is as serious and important a matter as the forensic
process of reasoning by which the presumption of innocence
is rebutted and the accused pronounced guilty. Like the former F
the latter also needs to be guided by sound logic uninfluenced
by any emotional or impulsive outburst or misplaced sympathy
that more often than not manifests itself in the form of a sentence
that is either much too heavy and oppressive or wholly
incommenst1rate considering the gravity of the offence G
committed. Courts have to avoid such extremities in their
approach especially where there is no legislative compulsion
or statutory prescription in the form of a minimum sentence for
an offence: The Courts do well to avoid the Shylockian
heartlessness in d~manding the proverbial pound of flesh. H
748 SUPREME COURT REPORTS (2014] 9 S.C.R.
A Justice tempered by mercy is what the Courts of law administer
even to the most hardened criminals. A spine- chilling sentence
may be the cry of those who have suffered the crime or its
aftermath but Courts are duty bound to hold the scales cif justice
even by examining the adequacy of punishment in each case
B having regard to the peculiar facts in which the offence was
committed and the demands of justice by retribution within
permissible limits. Absence of a uniform sentencing policy may
often make any such endeavour difficult but the Courts do, as
they ought to, whatever is fair and reasonable the difficulties,
c besetting that exercise: notwithstanding.
217. Question No.IV is accordingly answered in the
negative.
Re: Question No.V:
D
218. Adherence to safety standards in cinema theatres
and multiplexes in India is the key to the prevention of tragedies
like the one in the instant case. The misfortune, however, is that
those concerned with the enforcement of such standards often
E turn a blind eye to the violations, in the process endangering
the lives of those who frequent such places. While the case at
hand may be an eye-opener for such of them as are remiss in
their duty towards the public visiting cinema theatres and
multiplexes, the authorities concerned cannot afford to let their
guard down. As seen in the earlier part of this order, there are
F both civil and criminal liabilities that arise out of any such
neglect. Those who commit violations of the same are
accountable before law and may eventually come to grief should
an incident occur resulting in injury or loss of human lives. We
would have in the ordinary course issued directions to the
G authorities to take corrective step~, but for the fact that such
directions have already been issued by a coordinate Bench
while dealing with claims for payment of compensation made
by the legal heirs of those who died and others who were
injured in the incident. This Court has in the said decision
H observed:
SUSHIL ANSAL v. STATE THROUGH CBI 749
[T.S. THAKUR, J.]
"45. While affirming the several suggestions by the High A
Court, we add the following suggestions to the
government for consideration and implementation:
(i) Every licensee (cinema theatre) shall be required to
draw up an emergency evacuation plan and get it 8
approved by the licensing authority.
(ii) Every cinema theatre shall be required to screen a
short documentary during every show showing the exits,
emergency escape routes and instructions as to what to
do and what not to do in the case of fire or other hazards. C
(iii) The staff/ushers in every cinema theatre should be
trained in fire drills and evacuation procedures to provide
support to the patrons in case of fire or other calamity.
D
(iv) While the theatres are entitled to regulate the exit
through doors other than the entry door, under no
circumstances, the entry door (which can act as an
emergency exit) in the event of fire or other emergency)
should be bolted from outside. At the end of the show,
the ushers may request the patrons to use the exit doors E
by placing a temporary barrier across the entry gate
which should be easily movable.
(v) There' should be mandatory half yearly inspections of
cinema theatres by a senior officer from the Delhi Fire F
Services, Electrical Inspectorate and the Licensing
Authority to· verify whether the electrical installations and
safety measures are properly functioning and take action
wherever necessary.
(vi) As the cinema theatres have undergone a change G
in the last decade with more and more multiplexes
coming up, separate rules should be made for Multiplex
Cinemas whose requirements and concerns are different
from stand-alone cinema theatres.
H
750 SUPREME COURT REPORTS [2014] 9 S.C.R.
A (vii) An endeavour should be made to have a single point
nodal agency/licensing authority consisting of experts in
structural Engineering/building, fire prevention, electrical
systems etc. The existing system of police granting
licences should be abolished.
B
(viii) Each cinema theatre, whether it is a multiplex or
stand-a/one theatre should be given a fire safety rating
by the Fire Services which can be in green (fully
compliant), yellow (satisfactorily compliant}, red (poor
compliance). The rating should be prominently displayed
c in each theatre so that there is awareness among the
patrons and the building owners.
(ix) The Delhi Disaster Management Authority,
established by the Government of NCT of Delhi may
D expeditiously evolve standards to manage the disasters
relating to cinema theatres and the guidelines in regard
to ex gratia assistance. It should be directed to conduct
mock drills in each cinema theatre at least once in a
year."
E
219. We had in the light of the above passed an order in
Criminal Appeal No.603 of2010 directing the concerned to file
a status report as to the steps taken pursuant to the above
directions. We regret to say that nothing much appears to have
F happened since the issue of the directions extracted above.
This would have called for monitoring of the steps which the
authorities concerned were directed to take, but any such
process would have further delayed the pronouncement of this
order. We have, therefore, decided against that course. We all
the same leave it open to the Victims' Association or any other
G public spirited person to seek implementation of the said
directions in appropriate proceedings.
220. Question No. V is answered accordingly.
221. In the result:
H
SUSHIL ANSAL v. STATE THROUGH CBI 751
(i) Criminal Appeals No.597 of 2010 and 598 of 2010 A
filed by Sushil Ansal (A-1) and Gopal Ansal (A-2)
respectively are hereby dismissed upholding the
conviction and sentences awarded to them.
(ii) Criminal Appeal No.599 of 2010 filed by Divisional
B
Fire Officer, H.S. Panwar (A-15) is also dismissed
upholding his conviction and sentence ..
(iii) Criminal Appeal No.617-627 of 2010 and No.604
of 20~0 filed by D.V.B. Inspector B.M. Satija (A-9)
and Senior Fitter Bir Singh (A-11) are partly allowed G
to the extent that the conviction of the said two
appellants is altered to Sections 337 and 338 read
with Section 36 IPC without interference with the
sentence awarded to them.
D
(iv) Criminal Appeal No.605-616 of 2010 filed by CBI
and Criminal Appeal No.600-602 of 2010 filed by
the Association of Victims of Uphaar Tragedy are
dismissed.
222. Appellants Sushil Ansal (A-1), Gopal Ansal (A-2) and E
H.S. Panwar (A-15) are on bail. They are granted three weeks
time to surrender, failing which the Trial Court shall take
appropriate steps for having them apprehended and committed
to jail for undergoing the remainder of their sentences.
F
GYAN SUDHA MISRA, J. 1. Having had the benefit of the
views and reasonings assigned in the judgment and order of
Hon'ble Justice T.S. Thakur, I entirely agree and hence concur
with the findings recorded therein which are based on an in
depth analysis and meticulous scrutiny of evidence led by the G
prosecution as also the accused appellants therein. Hence, I
approve of the conviction of the accused appellants under
Sections 304A, 337, 338 read with Section 36 of the Indian
Penal Code ('IPC' for short) and Section 14 of the Indian
Cinematograph Act, 1952.
H
752 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 2. However, when it comes to determination and
imposition of sentence on the appellants due to their gross
criminal negligence, I find it difficult to be unmindful or ignore
that this country and more particularly the capital city of Delhi
was shocked and shaken to the core 16 years ago by the
B magnitude and disastrous incident which took place on
13.6.1997 in a cinema house now widely known as Uphaar
Tragedy which had virtually turned the cinema house into a pitch
dark gas chamber wherein the cinema viewers were initially
trapped due to lack of sufficient space and light for exit from
c the cinema hall and finally 59 persons lost their lives due to
asphyxiation in the catastrophe which is perhaps unparalleled
in the history of the city of Delhi. This tragic incident happened
due to grave lapse on the part of the appellants/respondents
in the instant appeals preferred by the AVUT and the CBI, who
D have been held guilty of gross criminal negligence concurrently
by the Trial Court and the High Court which are now being
approved by us in these appeals.
3. The appellants Sushil Ansal and Gopal Ansal in Criminal
Appeal No. 597 of 2010 and Criminal Appeal No.598 of 2010,
E therefore, had been charged and convicted for an offence under
Section 304A, 337, 338 read with Section 36 l.P.C. and
Section 14 of the Cinematograph Act, 1952 and sentenced to
undergo imprisonment for two years by the trial court. Similarly,
the appellants in Criminal Appeal No.599 of 2010 and Criminal
F Appeal No.617 to 627 of 2010 and Criminal Appeal No.604
of 2010 preferred by the Divisional Fire Officer H.S. Panwar
and Officers of Delhi Vidyut Board (shortly referred to as 'DVB') ·
were also convicted and sentenced to terms of imprisonment
specified in the impugned judgment and order of the High Court
G of Delhi. On appeal, however, the High Court although upheld
the conviction of the appellants/respondents herein under the
sections referred to hereinbefore, was pleased to reduce the
sentence of two years into one year but the appellants/
respondents herein have still preferred a batch of appeals in
H
SUSHIL ANSAL v. STATE THROUGH CBI 753
[GYAN SUDHA MISRA, J.]
this Court challenging their conviction and sentence on several A
grounds.
4. Learned Justice T.S. Thakur in the accompanying
judgment and order has already dealt with the matter in
extensive detail and has recorded a finding upholding their B
conviction and sentence under Section 304A alongwith the
other Sections. I fully endorse the same and hence uphold the
conviction of the appellants under Section 304A, 337, 338 read
with Section 36 of the I PC and Section 14 of the
Cinematograph Act, 1952.
c
5. But with regard to the question of sentence, it may be.
noted that the trial court had convicted the appellants and
sentenced them to imprisonment for two years which has been
reduced by the High Court to one year only in spite of the fact
that the High Court also upheld the findings of the trial court on D
the charge under Section 304A and other allied sections
referred to hereinbefore. However, the High Court in spite of
its finding highlighting the magnitude and gravity of the offence
committed by the appellants has simply observed that the
maximum sentence of two years under Section 304A is fit to E
be reduced to a period of one year only for which no specific
reason much less cogent and convincing has been assigned
as to why in the wake of the finding upholding the charge and
conviction under Section 304A IPC, should not have upheld and
maximum sentence of two years and whether the same was fit F
to be reduced to a period of one year only. But, before dealing
with the question of quantum and sufficiency of punishment
imposed on the appellant, I deem it appropriate to take into
consideration the appeal filed by the appellant-Association for
victims of Uphaar Tragedy (shortly referred to as 'the AVUT) G
bearing Criminal Appeal No.600-602/2010 filed by the AVUT
in a representative capacity for the victims of Uphaar Tragedy
as also the appeal filed by the C.B.I. bearing No.605 to 616 of
2010.
6. Learned Senior Counsel Mr. K.T.S. Tulsi in support of H
754 SUPREME COURT REPORTS [2014] 9 S.C.R.
A the appeal preferred by the AVUT had initially challenged the
charge framed against the accused appellants under Section
304A and had contended that the charge was fit to be
converted under Section 304 Part II IPC. On perusal of the
findings, views and observations as also the reasons assigned
B therein by Hon'ble Thakur, J., I entirely agree that after more
than 16 years of the incident, it would not be just and
appropriate to remand the matter back to the trial court to
consider converting the charge from Section 304A to 304 IPC
so that the accused may face prolonged trial all over again as
c I am also equally of the view that it would not be reasonable or
a just proposition and the correct course of action to adopt.
However, this does not deter me from accepting the contention
of the counsel for the AVUT that even if this Court considers
that at this length of time from the date of the incident ordering
0 a fresh trail may not be in the larger public interest, it would not
be a reason to refuse to consider whether accused-appellants
deserved the maximum sentence permissible under Section
304A IPC in spite of the gravity of charge and conviction which
we have upheld.
E 7. In order to consider this crucial aspect of the matter, it
would be necessary to recollect and refer to the findings
recorded by the trial court and the High Court approved by us
which learned Thakur J. has analyzed in great detail holding that
the death of 59 innocent persons are directly relatable to the
F rash and negligent acts of omissions and commissions of the
accused persons which were performed with such gross
negligence and indifference which clearly amounts to culpable
criminal negligence and failure to exercise reasonable and
proper care in running the cinema shows in their theatre namely
G Uphaar and the failure of the accused-appellants to perform the
imperative duties cast upon them by statutory rules, which were
sufficient to establish culpable criminal rashness and it further
establishes that they acted with consciousness and the
requisite knowledge as to the consequence of their acts of
H omissions and commissions. Death of innocent persons is thus
SUSHIL ANSAL v. STATE THROUGH CBI 755
[GYAN SUDHA MISRA, J.]
not only contributed by the actions of the accused-appellants A
but is directly relatable to the overt acts and conscious
omissions performed by them. Hence, I fully agree with the
views of learned Brother Justice Thakur that the degree of care
expected from an occupier/owner of a place which is frequented
everyday by hundreds if not thousands is very high in B
comparison to any other place that is less frequented or more
sparingly used for public functions. It is also equally true and I
agree that the higher the number of visitors to a place and
greater the frequency of such visits, the degree of care required
to be observed for their safety is higher. I, therefore, endorse c
the findings recorded by Thakur J., that judged in the above
backdrop, it is evident that the occupiers/appellants in the
present case had showed scant regard both for the letter of law
as also the duty under the common law to care for the safety
of their patrons. I also further agree with the view that the
D
occupiers not only committed deviations from the sanctioned
building plan that heightened the risk to the safety of the visitors
but continued to operate the cinema in contemptuous disregard
for the requirements of law and in the process exposed the cine
goers to a high degree of risk to their lives which some of them
eventually lost in the incident in question. E
8. Far from taking any additional care towards the safety
of the visitors to the cinema, the occupiers asked for
permission to place additional seats that further compromised
with the safety requirements and raised the level of risks to the F
patrons. There is much substance in the view taken that the
history of litigation between the occupiers on the one hand and
the government on the other regarding the removal of the
additional seats permitted and their opposition to the concerns
expressed by the authorities on account of increased fire G
hazards as also their insistence that the addition or continuance
of the seats would not affect the safety requirements of the
patrons/cine goers clearly showed that the owner of the cinema
house were more concerned with making a little more profit out
of the few additional seats that were added to the cinema in H
756 SUPREME COURT REPORTS [2014] 9 S.C.R.
A the balcony rather than maintaining the required standards of
safety in discharge of the common law duty but also under the
provisions of the Delhi Cinematograph Rules, 1953 (for short
'OCR 1953').
B 9. It is no doubt true which was urged on behalf of accused-
appellants that the incident in question which resulted in death
of 59 persons in the fire that broke out was caused by the fire
which started from the Delhi Vidyut Board Transformer which
was poorly maintained and shabbily repaired by the Delhi Vidyut
Board officials in the morning of 13th June, 1997. It was urged
C that the causa causans i.e. the cause of all causes for the loss
of human lives thus was the transformer that caught fire
because of the negligence of the DVB officials who did not even
have a crimping machine to repair the transformer properly. The
absence of oil soaking pit in the transformer room was also a
D reason for the oil to spill out from the transformer room to
spread the fire to the parking area from where smoke
containing lethal carbon monoxide rose, and due to chimney
effect , entered the hall to cause asphyxiation to those inside
the balcony. It was, therefore, urged on behalf of the accused-
E appellants/cinema house owners that there was no evidence
that any death had taken place inside the balcony which proved
that most if not all the patrons sitting in the balcony had exited
from that area but died on account of the poisonous effect of
the gas enough to kill human being within minutes of exposure.
F Placing reliance on the ratio of the decision of this Court in the
case of Kurban Hussein's case reported in 1,965 (2) SCR 622,
it was no doubt submitted that the causa causans in the case
at hand was the fire in the DVB transformer and not the alleged
deviations in the building plan or the sitting arrangements or
G the obstructions in the stair case that led out of the cinema
precincts.
10. In fact, learned counsel representing the CBI Mr. Harish
Salve and the counsel representing AVUT Mr. KTS Tulsi
accepted the position that while there was no quarrel with the
H
SUSHIL ANSAL v. STATE THROUGH CBI 757
[GYAN SUDHA MISRA, J.]
proposition that death must be shown to have occurred as a A
direct, immediate or proximate result of the act of rashness or
negligence, it was not correct to say that the deaths in this case
had occurred merely because of the fire in the transformer. In
fact, failure of the victims to rapidly exit from the smoke filled
atmosphere in the balcony area because of the obstructions B
and deviations proved at the trial was the real, direct and
immediate cause for the death of the victims in the instant case
who would have safely escaped the poisonous carbon
monoxide gas only if there were proper gangways, exits,
emergency lights and alarm system in working condition and c
human assistance available to those trapped inside the hall. I
see no reason to differ or disagree with this finding so as to
take a different view from what has been taken by Hon'ble
Justice Thakur who has upheld the findings of the trial court and
the High Court on these aspects. D
11. Thus there appears to be two features in this context
which need to be addressed and the first one is that the victims
in the present case did not die of burn injuries but all of them
died because of asphyxiation on account of prolonged
exposure to poisonous gases that filled the cinema hall E
including the balcony area. Whatever may have been the source
of fire as to whether it was caused by the DVB transformer or
otherwise, the causa sine qu_o_oefn was that there would have
been no smoke possible without fire; the proximate cause was
the smoke in the balcony area. Had there been no smoke in F
the balcony area, there would have been no casualties; that is
not however the same thing as saying that it was the fire or the
resultant smoke that was causa causans. In fact it was the
inability of the victims to move out of the smoke filled area
which was the direct cause of their death. Placed in a smoke G
filled atmosphere anyone would distinctively try to escape from
it to save himself. Therefore, if such escapes were delayed or
prevented, the causa causans for death was not the smoke but
the factors that prevented or delayed the escape of cine goers
H
758 SUPREME COURT REPORTS [2014] 9 S.C.R.
A from the smoke filled area which was the cinema house which
got converted into a gas chamber.
12. I find sufficient substance and force and hence agree
with the view taken by Hon'ble Justice Thakur that even if there
had been adequate number of exits, gangways and all other
8
safety measures in place but the exits had been locked
preventing people from escaping, the cause of death in such
event would be the act of preventing people from fleeing/exiting
from the smoke filled hall which may be depending upon
whether the act was deliberately intended to cause death or
C unintended due to negligence amounting to culpable homicide
amounting to murder which was an act of gross negligence
punishable under Section 304 A. An hypothetical case has
rightly been relied upon to infer that where instead of four exits
required under the relevant rules, the owner of a cinema had
D provided only one exit, that would have prevented the patrons
from moving out of the hall rapidly from the smoke filled
atmosphere. Thus, the cause of all causes termed as 'causa
causans' would be the negligent act of providing only one exit
instead of four required for the purpose. In such an eventuality,
E it would make no difference whether the fire had started from
a source within the cinema complex or outside or whether the
occupiers of the cinema were responsible for the fire or
someone else. Thus if failure to exit was the immediate cause
of death which is the view taken by learned Justice Thakur and
F I agree, that the same would constitute the causa causans and
hence I see no reason to deviate from the view taken as I find
sufficient substance and force in the view that the smoke
entered the cinema hall and the balcony but escape was
prevented or at least delayed because of breach of the
G common law and statutory duty to care. Reference of the
citations on this point relied upon by Justice Thakur in the
accompanying judgment needs no further reiteration which has
been amply discussed at great length therein.
13. The defence no doubt has relied upon the principle of
H
SUSHIL ANSAL v. STATE THROUGH CBI 759
[GYAN SUDHA MISRA, J.]
benefit of penal immunity that if the person doing an act is A
acting under a mistake of fact and the person doing the act in
good faith believes himself to be justified by law in doing it, then
he would be entitled to protection under Section 52 of the IPC
which states "that nothing is said to be done or believed
in "good faith" which is done or believed without due care B
and attention" would incur penal consequences.
14. The use of expression "good faith" in this context
necessarily brings in the question whether the person
concerned had acted with due care and caution. If they had not, C
part (b) of Section 79 IPC would have no application to the
case. In this context, it is difficult to overlook the evidence
addressed by the prosecution/C.B.I. Thus the view taken by
Justice Thakur that due care for the safety of the patrons was
cast upon the two appellants Ansal Brothers fell upon them which
they failed to comply as the evidence adduced at the trial and D
the concurrent findings recorded by the courts below have
established the breach of the duty in several respects which
include absence of any public address system to warn the
viewers of the cinema inside the cinema hall in the event of any
emergency which was a part of the duty to care which was E
grossly breached by the occupiers/appellants herein. This duty
was a continuing obligation and had to be strictly discharged
in respect of each cinema show conducted in the theatre. The
grant of license or its renewal by the licensing authority did not
in any manner relieve the occupiers of that obligation. Similarly, F
the requirement that the cinema house must have had
emergency lights, fire extinguishers and that the occupiers must
have provided help to the viewers in case of any emergency
ensuring rapid dispersal from the enclosed area, were
obligations which were implicit in the issuance and renewal of G
cinematograph license. Breach of all these obligations could
not be justified on the ground that a license was granted or
renewed in favour of the owners/licensee and no matter what,
the duty to care towards the safety of the patrons was grossly
neglected by the theatre owners/ the accused appellants. H
760 SUPREME COURT REPORTS [2014] 9 S.C.R.
A Failures in the event of mishap like the one at hand on account
of the occupiers to discharge their legal obligations to take care
for the safety of the patrons thus cannot be held to be immune
from prosecution simply because a license to exhibit the films
had been granted or renewed from time to time. The test of
B ordinary prudence applied to such proved attendant
circumstances thus can help the court to determine whether an
act or omission was in good faith or otherwise.
15. Thus, the finding recorded in the judgment by Thakur
C J., to the effect that the fundamental obligation and duty to care
at all times rested with the occupiers of the cinema house and
the licensee thereof is fit to be upheld. In discharge of the duty
the appellants/owners are surely not entitled to argue that so
long as there was a license in their favour, they would not be
accountable for the loss of life or limb of anyone qua whom the
D occupiers/owners owed that duty. The duty to care for the safety
of the cine goers even independent of the statutory additions
made to the same , required the occupiers to take all such steps
and measures which would have ensured quick dispersal from
the cinema building of all the viewers inside the premises in
E the event of an emergency. But apart from that, a sitting plan
which was in breach of the statutory provisions and
compromised the safety requirement prescribed under the
OCR 1953, could hardly support a belief in good faith that
exhibition of films with such a plan was legally justified. That is
F so especially when the repeal of notification dated 30th
September 1976 by which Uphaar was permitted 100 more
seats was followed by a demand for removal of the additional
seats. Instead of doing so the appellants/owners challenged that
demand in a writ petition before the High Court of Delhi in which
G the High Court directed the authorities to have a fresh look from
the standpoint of substantial compliance of the provisions of the
Cinematograph Act. The High Court observed and directed the
administration to apply their mind to the additional seats with
a view to determine which of them have contravened which rules
H and to what extent. It was observed that compliance with the
SUSHIL ANSAL v. STATE THROUGH CBI 761
[GYAN SUDHA MISRA, J.]
rule were to be substantial and not rigid and inflexible. If while A
carrying out the above directive, the authorities concerned
turned a blind eye to the fundamentals of the rules by ignoring
the closure of the right side exit and gangway prescribed as
an essential requirement under OCR 1953, they acted in
breach of the rules and in the process endangered the safety B
of the cinema viewers. The cinema owners had opposed the
removal of the additional seats even when the respondent-
authorities in the writ petition had expressed concerns about
the safety of the patrons if the additional seats were not
removed which removal would have by itself resulted in c
restoration of the right side gangway. However, the authorities
also ought to have insisted on the restoration of the right side
exit by removal of the eight seaters box which was allowed in
the year 1978 ostensibly because with the right side gangway
getting closed by additional seats occupying that space, the
0
authorities considered the continuance of the right side exit to
be of no practical use.
16. In the wake of the aforesaid concurrent findings, the
question looms large as to why the High Court interfered with
the quantum of punishment imposed by the trial court which had E
awarded a sentence of two years to the accused appellants but
was reduced by the High Court to a period of one year without
any reason as I cannot be unmindful of the legal position that
the scope of interference on the question of sentence and with
the quantum of punishment awarded by the High Court is F
undoubtedly limited to cases where the sentence imposed is
manifestly inadequate and which the Court considers such
reduced punishment tantamount to no punishment or illusory.
17. On a perusal of the ratios of cases referred to on this G
point specially in the matter of Sham Sunder vs. Puran and
Anr. (1990) 4 SCC 731, it has been held that in a case where
the sentence imposed by the High Court appears to be so
grossly and entirely inadequate as to involve a failure of justice,
this Court would be justified in interfering and enhancing the
H
762 SUPREME COURT REPORTS [2014] 9 S.C.R.
A sentence and hence the period undergone awarded by the High
Court was increased to a period of five years in a case under
Section 304 Part I IPC considering the nature of offence
committed by the accused as this Court has unequivocally held
that in criminal cases, awarding of sentence is not a mere
B formality and whenever this Court is of the view that the sentence
awarded is wholly disproportionate to the crime, it would be
justified in substituting it with a sentence of higher degree and
quantum.
18. It has been held that where the statute has given the
C Court a choice of sentence with maximum and minimum limit
presented, an element of discretion is surely vested with the
court but this discretion cannot be exercised arbitrarily or
whimsically. It will have to be exercised taking into consideration
the gravity of offence, the manner in which it is committed, the
D age, the sex of the accused, in other words the sentence to be
awarded will have to be considered in the background of the
fact of each case and the Court while doing so should bear in
mind the principle of proportionality that the sentence awarded
should be neither excessively harsh nor ridiculously low. This
E was the view expressed by a three Judge Bench of this Court
delivered in the matter of Deo Narain Manda/ vs. State of U. P.
(2004) 7 sec 257, wherein the trial court had awarded a
maximum sentence of two years R. I. for an offence punishable
under Section 365 IPC but the High Court reduced the sentence
F to the period undergone (40 days). A bench of three Judges
of this Court intervened in the matter on the ground that the
sentence awarded was wholly disproportionate to the crime
and hence substituted a sentence of six months R. I. Similarly,
the ratio of the cases already referred to by Justice Thakur in
G his judgment viz. State of UP. vs. Shri Kishan (2005) 10 SCC
420; State of M.P. vs. Ghanshaym Singh (2003) 8 SCC 13
and State of M.P. vs. Sangaram and Ors. AIR 2006 SC 48
unequivocally have laid down that where sentence is wholly
inadequate, the same may be enhanced which has to be
H commensurate with the gravity of the offence so that it may not
SUSHIL ANSAL v. STATE THROUGH CBI 763
[GYAN SUDHA MISRA, J.]
amount to failure of justice. In all these cases, when this Court A
found the sentence awarded by the High Court to be wholly
disproportionate to the gravity of offence and considered
imprisonment of a longer period which befitted the gravity of
the offence committed by the accused, it enhanced the quantum
of sentence. B
19. It is most certainly true that the award of punishment
to an accused in a case wherein the guilt of the accused is
proved, is a serious and important matter and the same needs
to be guided by sound logic uninfluenced by any emotional or
impulsive outburst or misplaced sympathy that more often than C
not, manifest itself in the form of a sentence that is either much
too heavy and oppressive or wholly in commensurate
considering the gravity of the offence committed. Courts in any
view have to avoid such extremities in their approach specially
when there is no legislative compulsion or statutory prescription D
in the form of a minimum sentence for an offence committed.
20. Bearing the aforesaid parameters and the principles
in mind and in the light of findings recorded concurrently and
approved by us, I have not been able to convince myself or feel E
persuaded or find a valid reason why the High Court should
have reduced the sentence of two years awarded by the trial
court by reducing it to one year in the wake of the finding
recorded by us also as we have held that all the accused owed
a duty of care to the deceased persons since accused Sushil F
Ansal and A-2 Gopal Ansal were in actual control of the
premises and took active participation in the day to day
management of the theatre. They were the actual decision
makers without whose approval no action could be undertaken
in the premises. A-1 was the licensee of the cinema and had G
the obligation to run it with due and reasonable care. A-2 as
the Managing Director of Ansal Properties & Industries Ltd had
exercised complete control over the management of the theatre.
They were the actual beneficiaries of the establishment who
were making out financial gains by charging the public. As
H
764 SUPREME COURT REPORTS (2014] 9 S.C.R.
A persons in charge of a public entertainment centre which caters
to the general public they owed a duty of care to maintain a
safe environment. It would be indeed very far fetched to contend
that a person who maintains a cinema hall and charges the
public a fee for the facility, does not owe a duty of care to ensure
B that the public can enjoy the facility in a safe environment.
21. In the present case every rule in the book had been
violated with impunity, whether it be the maintenance of the
transformer, illegal user of the area around the transformer,
closure of gangways and exit in the balcony. Not only that the
C transformer was not kept in a safe environment, the area
around the transformer had been filled with combustible
substances so as to aggravate the danger. The public
announcement system, emergency lights etc which are the
most basic requirements in the cinema hall were non functional.
D On top of that, the illegal closure of exit in the balcony ensured
that patrons could not make a speedy exit. All these decision
were taken by A-1 and A-2 who were in active control of the
theatre and the premises. In such a scenario it can easily be
said that not only were they negligent but the negligence was
E of such a high degree that no reasonable man would have
undertaken such a course specially the ones who were dealing
in the business of running a cinema theatre where the lives of
public at large were involved day in and day out as visitors to
the cinema show.
F
22. The death of the deceased in the tragedy occurred due
to the trap created for them by A-1 and A-2 along with the other
actors who helped them achieve that end. Had the layout of the
balcony not been changed from the sanctioned plan to such an
G extent that access to the right hand exit was totally blocked, this
tragedy would not have taken place. Due to the blockage of the
right hand exit the patrons were forced to use both the left hand
exits which opened on the smoke filled left hand stairs.
23. The conduct of A-1 and A-2/respondents in these
H appeals was thus in total disregard of all the safety rules meant
SUSHIL ANSAL v. STATE THROUGH CBI 765
[GYAN SUDHA MISRA, J.]
to contain a tragedy of this kind coupled with the knowledge of A
the 1989 fire which had taken place earlier in the Uphaar theatre.
The culpability of the accused thus clearly brings them within
the four corners of Section 304 as it lies in the knowledge that
such a tragedy was possible and in fact had taken place in 1989
in an identical manner. But rather than taking stock of the B
situation they chose to carry on in the same manner as before
in reckless disregard to the consequence.
24. This shows that the appellants I respondents herein
Sushil Ansal and Gopal Ansal had knowledge that the C
transformer located on the ground floor was dangerous to the
paying patrons visiting the cinema. This incident clearly
established that the owners/ directors I Licencee and
management were aware of the fact that the transformers posed
a potential danger of a major fire and of the hall and balcony
getting smoked up 'chimney effect'. Inaction on the part of A-1 D
and A-2 despite the pendency of case regarding suspension
of their license continued although a major fire had broken out
on 06.07.1989 at 11.40 P.M. in identical circumstances when
both the transformers i.e. the transformer of the Cinema as well
as the transformer of DESU burnt and smoke reached righ~ up E
to the balcony, but no step was taken to rectify the situation.
The Licence was neither revoked nor was the matter brought
to the notice of Hon'ble High Court.
FAULTY REPAIR OF THE TRANSFORMER F
25. Besides the above, it has further come out in evidence
led by the CBI and referred to extensively, that the cable end
socket of the B phase of LT supply, cable of the transformer
had not been fixed properly by A-9 (B M Satija), A-10 (A.K.
Gera) & A-11 (Bir Singh) of DESU. The same had been fixed G
by hammering and not by crimping machine or any other proper
system as provided under BIS 12~5, 1983. Thus the short circuit
resulting in the fire could have been avoided had the cables
been properly repaired. As' per the Report of electrical Inspector
H
766 SUPREME COURT REPORTS [2014] 9 S.C.R.
A NCT of Delhi Shri K.L. Grover (EX. PW 24/A), the cable and
socket of "B" phase of LT supply cables had not been fixed
properly as the same appeared to have been fixed by
hammering and not by the crimping machine or any other proper
system. In his deposition, he has further clarified that the LT
B PVC ce!ble socket was not crimped as required under the
provision of IS Code 1255 of 1983 r/w sub rule 2 of Rule 29 of
Rule 1956. The HT circuits were not found provided with
protection system. The OCB were acting like as manual isolator
and not as OCB's as they could not have been tripped
c automatically in case of abnormal condition of supply. The 1000
KVA transformer was not having sufficient clearances as
required under IS 1886/1967. No arrangement for draining out
of transformer oil in case of damage/rapture to the transformer
was found which is mandatory as per the provision of IS 1886/
D 1967 & IS 10028/1981.
26. As is clear from the deposition of PW48 S K Bahl (Addi
Chief Engineer DVB), the staff of the DVB were obliged to
follow the BIS standard which provided crimping for fixing of
loose cables. He deposed that the Crimping Machines are
E provided for the purpose of crimping the socket with LT leads
of the transformer. This was only to secure that no loose
connections are made which could give rise to high
temperature resulting in burning of leads at times ..... It was
obligatory for the staff of DVB to follow the Indian Standards &
F DVB Manual for both installation as well as maintenance of
substation equipment.
27. Thus the evidence adduced by the appellant CBI and
referred to in great detail in support of their appeal establishes
G that due to the faulty repair of the transformer the connection
of the cable end socket of the B phase of LT supply remained
loose which resulted in sparking. This coupled with 1000 KVA
current which was passing through these bus bars led to
excessive heating. This caused a cavity on the B phase and
H melting of the upper portion of cable end socket. Thus the cable.·
SUSHIL ANSAL v. STATE THROUGH CBI 767
[GYAN SUDHA MISRA, J.]
and socket came out from the bolt portion and hit the radiator A
fin of the transformer. The live conductor of the cable (whose
insulation had melted due to the heating) formed an opening
in the radiator fin and the transformer oil gushed out and caught
fire. Reports of KV Singh EE Electrical PWD (PW 35/A), Report
of Electrical Inspector, NCT, Shri K.L. Grover (PW 24/A), B
Report of Dr. Rajinder Singh (CFSL) (PW 64/B)] have been
referred to by the appellant CBI in their appeal. The above
findings thus have rightly been affirmed by the Hon'ble High
Court in the impugned judgment.
28. I have further taken note of the fact that the transformer C
room was not ventilated as per the prescribed BIS Rules.
(Clauses 7.3.1.1, 7.3.1.2, 7.3.1.4, 7.9.3 of the BIS rules) .. In fact,
the open space above the parapet behind the transformer room
from where smoke could have easily gone outside the building
was closed. Instead of the parapet as reflected in the D
sanctioned plan there was a full wall behind the transformer
effectively trapping the fire and the smoke within the building.
The sanctioned plan showed a parapet behind the transformer
room as per PW 15-Y/11 which is a low wall built along the
edge of a roof or a floor not more than 3ft. in height" in the E
Building Byelaws 1959. So the height of the wall behind the
transformer could not have been more than 3 feet according
to the sanction plan. But as is clear from the various reports
there was full fledged wall behind the transformer. The Report
of MCD Engineers (Ex. PW2/A) also states that in the rear a F
pucca wall marked A-B in the existing stilt plan has been
constructed in full height of building whereas this wall in stilt floor
has been shown open upto a height of 12 ft in the sanctioned
plan. This was a serious violation against the sanctioned
building plan. The same was reiterated in Report of PWD G
Engineers (EX PW29/A) which states that outer wall behind HT/
LT room was constructed up to the First Floor height instead
of 3ft height. In addition PW2 R.N. Gupta (EE) MCD and PW
29 B. S.Randhawa (AE) PWD have also deposed that outer
H
768 SUPREME COURT REPORTS [2014] 9 S.C.R.
A wall behind HT transformer and LT room was found constructed
upto the first floor height instead of 3 feet height.
29. I have further noted that A9toA11 conducted improper
repair of the DVB Transformer in the morning of 13.6.97 without
B the help of crimping machine which resulted in loose fitting/
connections causing sparking in between the B Phase of the
transformer, causing a hole in the radiator fin resulting in
leakage of transformer oil which caught fire on account of the
rise in the temperature due to the sparking and the improper
repairs of the transformer which is established from the Repair
C Report Ex PW 108/AA, EX PW 40/C: the entry of repair, PW
40 PC Bharadwaj AE DVB & PW 44 Bhagwandeen. The
contention of B. M. Satija that he was not posted in substation
zone 1601 is incorrect as is clear from Ex. PW 48 E which is
a letter from S.K. Bahl Addi. Chief Engineer to SP CBI (PW
D 48) dated 30.07.97 in reply to query from SP CBI. In reply to
query No. 3, he clearly stated that B.M. Satija was entrusted
the work of Substation zone 1601 of Dist. R.K. Puram. Uphaar
Cinema which substation fell under jurisdiction of zone 1601,
Capital work order 19.5.1997 vide (Ex PW 43/DC).
E
CULPABILITY OF THE SUPERVISOR OR INSPECTOR
30. In the present case, A-9 to A-11 i.e. the Inspectors and
the fitt~r of DVB were in charge of the maintenance of the
transformer which is a hazardous object. As electricians they
F should have known that by its very nature a transformer of such
high capacity stored inside a building required proper
maintenance and any lapse on their part would endanger the
life of all the occupant of the building and neighbourhood. The
callous manner of repair by these accused resulted in the
G outbreak of fire which finally resulted in a mass tragedy. A-15
is the Divisional Officer with DFS. It was his duty to inspect the
building for the fire hazards and ensure that it was a safe place
for the public. The illegalities and the violations committed by
the management of the Cinema would not have been possible
H without willful dereliction of duty by this accused.
SUSHIL ANSAL v. STATE THROUGH CBI 769
[GYAN SUDHA MISRA, J.]
31. Thus the very per.sons who had been deputed to keep A
the public safe connived with the management to turn a blind
eye to the hazards created in the building. The conduct of this
accused is nothing short of reckless which finally led to the
death of 59 persons as the transform~r in question i.e. D.V.B.
Transformer did not have following safety measures at the time B
of inspection:
(i) The L.T. Side cables from the bus bar did not have
clamping system or any support to the cables.
(ii) The earth cable of the transformer had been found C
temporarily fitted with the earth strip i.e. twisting of
earth cable.
(ii.i) There was no cable trench to conceal the cable.
D
(iv) H.T. Panel Board of transformer did not have any
relay system to trip the transformer in case of any
fault.
(v) The Buchholtz Relay system was not fitted on the
transformer. E
(vi) Temperature meter was not found fitted on the
transformer.
32. The physical examination of D.V.B. transformer reveals
that the cables on bus bars on LT. side did not have check F
nuts. Except one lower terminal of phase Y and neutral terminal.
The check nut of neutral terminal was found in loose condition.
The blue phase single cable at the top along with cable-end-
socket (detached cable) fell down on radiator fin due to constant
arching sparking at nut bolt portion on bus bar, decoiling effect G
of cable and weight of cable. All coupled together led to eating
away of metal of cable and socket resulting in U shape cable
socket end. The physical examination of D.V.B. transformer
reveals that the cables on bus bars on L.T. Side did not have
H
770 SUPREME COURT REPORTS [2014] 9 S.C.R.
A check nuts. Except one lower terminal of phase Y and neutral
terminal. The check nut of neutral terminal was found in loose
condition. The blue phase single cable at the top along with
cable-end-socket (detached cable) fell down on radiator fin due
to constant arching sparking at nut bolt portion on bus bar,
B decoling effect of cable and weight of cable. All coupled together
led to eating away of metal of cable and socket resulting in U
shape cable socket end.
33. In fact PW 48 S K Bahl (Addi. Chief Engineer DVB)
deposed that as far as substation staff is concerned DVB has
C Asst. Electric Fitters/ Sr. Electric Fitter who actually carry out
the maintenance depending upon the extent of damage caused
to such equipment. The immediate officer for getting such work
done is the Junior Engineer who has specific jurisdiction of the
area as fixed by his officers. The lnspector/JE in their
D respective areas were responsible for 100% check of the
substation.
34. It had come in the evidence that Crimping Machines
are provided for the purpose of crimping the socket with LT
E leads of the transformer. This is only to secure that no loose
connections are made which could give rise to high
temperature resulting in burning of leads at times. One
transformer of 1000 KVA capacity was existing in one of the
transformer rooms at Uphaar complex which was catering to
F the supply of adjoining localities of Green Park, apart from
meeting part of the load of Uphaar complex were some of the
connections have been allowed. It is obligatory for the staff of
DVB to fllow the Indian Standards & DVB Manual for both
installation as well as maintenance of substation equipment.
G 35. PW 73 Y. P. Singh (Retd.) Member Technical DVB
also deposed that his post was the highest post on technical
side in DVB. He went to Uphaar cinema building on the day
the fire incident took place and inspected the place and he
deposed that as per the sanction order crimping machine was
H a major factor. Crimping machine is never keptin sub station
SUSHIL ANSAL v. STATE THROUGH CBI 771
[GYAN SUDHA MISRA, J.]
as a stock. It is issued to the person who has to carry on the A
repairs. It is incorrect that the effect of hammer & dye is the
same as that of crimping machine. In a crimping machine the
worker is in a position to put required force while crimping the
socket, while in case of dye & hammer the force applied is
always arbitrary. A.K. Gera A-10 Gera has contended that he B
was assigned Zone 1603 and Uphaar was under 1601
therefore he just accompanied Satija and Bir Singh to Uphaar
and not responsible for the repair of the Transformer. In his
deposition at PW40 has clarified that the complaint was
attended to by whoever was available at the time of complaint c
and not limited to the persons assigned to that zone. Zones are
demarcated for maintenance but for breakdown there is no
bifurcation.
36. PW44 Bhagwan Deen Mazdor DESU deposed that
on 13.6.97 he was working as Mazdoor in DESU at Sector 6 D
R.K. Puram DESU. On 13.6.97 and had accompanied B. M.
Satija, Inspector A.K. Gera & Bir Singh Sr. Fitter and went to
Uphaar cinema at about 10-10.30 AM. He had taken tool box
along with him under the instruction all the three above
mentioned officials. (The witness correctly identified all the E
accused in the court). Bir Singh opened the shutter of the
transformer room where the DVB transformer was installed.
The socket was changed with the help dye and hammer as
crimping machine was out of order by all the three mentioned
above i.e. Bir Singh, Satija & A.K. Gera. After changing the F
socket the lead with socket was connected Bus Bar. The entire
repair work was finished within 45 minutes approximately. After
replacing the socket and connecting to Bus Bar the switch was
put on and thereafter electricity supply was restored.
G
37. In addition to the aforesaid evidence, A-15 H.S.
' Panwar-Delhi Fire Service was responsible for issuing NOC
from the fire safety and means of escape point of view. Though
no fire safety and means of escape was available as per the
standard laid down, in the Uphaar Cinema on th.e date of
H
772 SUPREME COURT REPORTS [2014] 9 S.C.R.
A inspection i.e. 12.5.97 & 15.5.97 still NOC was issued. On the
basis of this NOC, Temporary License was issued by the
Licensing Authority. (Ex 31/DB & Ex 31/DC).
38. As a consequence of the aforesaid findings based on
the analysis of the evidence recorded hereinbefore, sentence
8
of two years awarded by the trial court in my view was not fit to
be· interfered with by the High Court and for this reason the
appeal preferred by the AVUT is fit to be allowed to the extent
that although the charge under Section 304 A may not be
C allowed to be converted into 304 Part II by remanding the matter
for re-trial after the passage of more than 16 years, yet the
sentence may not be reduced which trivializes or minimises the
gravity of offence to a farce whereby justice to the cause
appears to be a mirage, mockery or a mere tokenism. In my
considered opinion, the High Court has indulged in misplaced
D sympathy by reducing the sentence of two years awarded by
the Trial Court to one year in spite of its finding upholding the
charge of gross criminal negligence under Section 304A and
other allied Sections which is grossly inadequate considering
the nature and gravity of offence committed by the appellants
E as also the finding that I have recorded hereinabove due to
which their conviction under Section 304 A, 337, 338 read with
36 IPC has been upheld by us. In our opinion, the extent of the
sentence of two years was thus not fit to be interfered with.
F 39. Nevertheless, the fact remains that 16 years have
elapsed in the process of conclusion of the trial and pendency
of the appeal and the appellant No.1 Sushil Ansal is now aged
more than 74 years and even if the appellants are subjected
to undergo the maximum sentence of two years, it can hardly
G be held to be sufficient so as to match with the magnitude and
gravity of offence for giving rise to the catastrophe in which 59
persons lost their lives due to reckless and gross criminal act
of negligence at the instance of the appellants. Therefore, in
an offence of this nature which can be put some what on par
with the well-known tragic incident commonly known as 'Bhopal
H
SUSHIL ANSAL v. STATE THROUGH CBI 773
[GYAN SUDHA MISRA, J.]
Gas Leak Tragedy', compensation of high quantum along with A
sentence of imprisonment may meet the ends of justice which
must be punitive, deterrent and exemplary in nature. However,
in this context, I also find force in the view taken by the High
Court of Bombay in the matter of State of Maharashtra vs.
Chandra Prakash Neshavdev reported in 1991 Cr.L.J. 3187, B
wherein it observed that it is an essential necessity of public
policy that accused who have committed crimes must be
punished when facts are fresh in the public mind. If for whatever
reasons, the judicial process had dragged on for an abnormal
point of time and the accused at that stage is faced with an c
adverse verdict, it would not be in the interest of justice to
impose at this point of time jail sentence on the accused
however serious the facts of the case are. Moreover, the tragic
incident in this matter was the consequence of a cumulative
negligence at the instance of the licensee Sushil Ansal and its D
executing authority Gopal Ansal as also due to the fault in the
transformer of the Delhi Vidyut Board (DVB) and negligence
of their employees which was not repaired and maintained
properly as discussed hereinbefore and the accused appellants
did not make a cautious and realistic attempt or used their
E
foresight to foresee such an incident as ultimately the aim of
the appellants Sushil Ansal and Gopal Ansal in Criminal Appeal ·
Nos.597 and 598 of 2010 was to make monetary gain by
running the theatre.
40. Hence, I am of the view that the interest of justice to F
some extent would be served by imposing on the accused
appellants a substantial fine and not merely a jail sentence.
Thus, while the sentence of one year imposed by the High
Court is upheld, the additional sentence of one year further while
allowing the appeal of AVUT, is fit to be substituted by a G
substantial sum of fine to be shared equally by the appellants
Sushil Ansal and Gopal Ansal alongwith the DVB which also
cannot absolve itself from compensating the victims of Uphaar
tragedy represented by the AVUT.
H
774 SUPREME COURT REPORTS [2014] 9 S.C.R.
A 41. Thus, while I uphold the conviction and sentence of the
appellant No.2 Gopal Ansal in Criminal Appeal No.598 of 2010
who was in fact conducting the business of running the Uphaar
Theatre and had greater degree of responsibility to ensure
safety of the cinema viewers, the appellant Sushil Ansal in
B Criminal Appeal No.597 of 2010 was primarily a licensee who
was conducting the business and running Uphaar Theatre
essentially through his brother A-2 Gopal Ansal. Hence, while
the sentence of one year awarded in Criminal Appeal No.597
of 2010 to Sushil Ansal is fit to be upheld, the sentence already
c undergone by him may be treated as sufficient in the said
appeal as he has already served major part of the sentence
and in spite of dismissal of his appeal, he would at the most
serve the balance three months sentence further along with
remission.
D 42. But while allowing the appeal of AVUT and CBI, I take
note of the fact that since Sushil Ansal is now more than 74
years old and was running the theatre business essentially
along with his brother appellant No.2 Gopal Ansal, I consider
that the period of enhanced sentence in these appeals imposed
E on the appellants Sushil Ansal and Gopal Ansal may be
substituted with substantial amount of fine to be specified
hereinafter and paid in the appeal bearing Nos.600-602 of
2010 preferred by AVUT and Criminal Appeal Nos.605-616 of
2010 preferred by the CBI which shall be shared by the
F appellant Sushil Ansal and appellant Gopal Ansal in equal
measure along with the Delhi Vidyut Board as I have upheld
the sentence imposed on their employees too. My view stands
fortified by the order passed in the case of Bhopal Gas Leak
Tragedy where the punishment for criminal negligence was
G allowed to be substituted by substantial compensation which
were paid to the victims or their legal representatives.
43. In view of the candid, comprehensive, unblemished
findings recorded by the trial court, High Court and upheld by
us after intensive and threadbear scrutiny of the evidence led
H
SUSHIL ANSAL v. STATE THROUGH CBI 775
[GYAN SUDHA MISRA, J.]
by the prosecution as also the accused respondents in the A
Criminal Appeal Nos.600-602 of 2010 preferred by the AVUT
and Criminal Appeal Nos.605-616 of 2010 preferred by the
CBI, I am of the view that the appeals preferred by the AVUT
and CBI are fit to be allowed and no leniency deserves to be
shown while awarding maximum sentence prescribed under B
Section 304 A and other allied sections. Nonetheless one will
also have to be pragmatic and cannot ignore that the
enhancement of sentence of one year to two years to the
accused cannot bring back those who suffered and lost their
lives in the tragic and the horrific incident. Thus, while I am fully c
conscious and share the intensity of the agony and deep
concern of the AVUT which has diligently prosecuted the
appeal up to the highest Court, I am of the view that the ends
of justice to some extent would be met by not merely awarding
them sentence of imprisonment which I do by dismissing their
0
appeals against the judgment and order of the High Court by
which a sentence of one year has been awarded to all the
accused, but also by enhancing their sentence but substituting
it with substantial amount of fine to be used for the public cause
in the memory of the Uphaar victims.
E
43. Hence, in so far as the Criminal Appeal No.600-602
of 2010 preferred by the AVUTNictims Association and the
prosecution represented by CBI bearing Criminal Appeal
Nos.605-616 of 2010 are concerned, I deem it just and
appropriate to allow both the appeals by enhancing their F
sentence upto the maximum period of two years prescribed
under IPC for offence under Section 304A but in lieu of the
additional period of sentence of one year, a substantial amount
of fine to be specified hereinafter is directed to be paid by the
appellants Sushil Ansal, Gopal Ansal and DVB in view of gross G
negligence on the part of their employees in order to
compensate the charge of criminal negligence established
against these accused persons. Hence, the enhanced period
ot"sentence of one year shall be substituted by imposition of
the amount of fine to be paid by them and I do so by placing H
776 SUPREME COURT REPORTS [2014] 9 S.C.R.
A reliance on the ratio of the order passed in the well known case
of Bhopal Gas Leak Tragedy wherein the entire criminal case
itself had been quashed by way of settlement against the
accused and the sentence was substituted with heavy amount
of fine which was paid to the victims by way of compensation.
B However, in this matter, the appellants have already stood the
test of a long drawn-trial wherein they have been convicted and
sentenced which I have upheld and hence they shall undergo
remaining period of sentence imposed under Section 304A
along with the fine which we propose to impose in the appeals
c preferred by AVUT and CBI.
44. Therefore, for the reasons recorded hereinbefore, I am
of the view that in lieu of the enhanced sentence of a period of
one year which I allow in the appeals preferred by AVUT and
CBI, the same be substituted with a fine of Rs.100 crores (One
D Hundred Crores) to be shared and paid by A-1 Sushi! Ansal
and A-2 Gopal Ansal in equal measure i.e. 50 crores each and
100 crores in all and shall be paid by way of a demand draft
issued in the name of the Secretary General of the Supreme
Court of India which shall be kept in a fixed deposit in any
E nationalised Bank and shall be spent on the construction of a
Trauma Centre to be built in the memory of Uphaar Victims at
any suitable place at Dwarka in New Delhi as we are informed
that Dwarka is an accident prone area but does not have any
governmental infrastructure or public health care centre to treat
F accident victims. For this purpose, the State of Delhi as DVB
which is/was an instrumentality of the State, shall allot at least
five acres of land or more at any suitable location at Dwarka
within a period of four months of this judgment and order on
which a trauma centre for accident victims alongwith a super '
G speciality department/ ward for burn injuries shall be
constructed to be known as the 'Victims of Uphaar Memorial
Trauma Centre' or any other name that may be suggested by
the AVUT/Uphaar Victims Association. This trauma centre shall
be treated as an extension centre of the Safdarjung Hospital,
H New Delhi which is close to Uphaar Theatre and was the
SUSHIL ANSAL v. STATE THROUGH CBI 777
[GYAN SUDHA MISRA, J.]
accident site which is hard pressed for space and desperately A
needs expansion considering the enormous number of patients
who go there for treatment. The trauma centre to be built at
Dwarka shall be treated as an extension centre of the
Safdarjung Hospital to be constructed by the respondent
accused Sushil Ansal and respondent accused Gopal Ansal B
under the supervision of the Building Committee to be
constituted which shall include Secretary General of the
Supreme Court, Registrar Administration of the Supreme Court
alongwith a representative of the AVUT nominated by the
Association and the Hospital Superintendent, Safdarjung c
Hospital, New Delhi within a period of two years from the date
of allotment of the plot of land by the State of Delhi which shall
be run and administered by the authorities of the Safdarjung
Hospital Administration as its extension centre for accident
victims. D
45. In case, the accused appellants/respondents herein
Sushi! Ansal and Gopal Ansal fails to deposit the fine as
ordered, the land alongwith Uphaar Theatre which is the
accident site and is still existing at Green Park and has been
seized shall be put to public auction under the supervision of E
the Building Committee referred to hereinbefore and the
proceeds thereof shall be spent for constructing the Trauma
Centre. It will be open for the Building Committee and/or the
AVUT in particular to seek such other or further direction from
this Court as and when the necessity arises in regard to the F
construction operation and administration of the Trauma
Centre. The appeals bearing Criminal Appeal Nos.600 to 602
of 2010 preferred by AVUT and the appeal preferred by the
CBI bearing Criminal Appeal Nos.605 to 616 of 2010 thus
stand allowed in terms of the aforesaid order and direction. G
46. In so far as the other connected Criminal Appeals are
concerned, I respectfully agree and affirm the judgment and
order passed by Hon'ble Thakur, J. Thus, the appeals bearing
Nos.597 and 598 of 2010 preferred by the appellants/ H
778 SUPREME COURT REPORTS [2014] 9 S.C.R.
A respondents Sushil Ansal and Gopal Ansal are dismissed
except that the sentence imposed on the appellant No.1 Sushil
Ansal is reduced to the period already undergone considering
his advanced age. The other appeals preferred by the officers
of DVB bearing Nos.617 to 627 of 2010 and 604 of 2010 and
B the employee of Fire Service bearing Appeal Nos.599 of 2010
are also dismissed as already ordered by Hon'ble Thakur, J.
with which I agree. Consequently, the appellants shall surrender
to serve out the remaining part of their sentence and in view of
the appeals of AVUT and CBI bearing Appeal Nos.600 to 602
c of 2010 and 605 to 616 of 2010 having been allowed, who are
the respondents Sush:I Ansal and Gopal Ansal in the appeals
preferred by AVUT and the CBI, shall deposit the amount of
fine imposed hereinbefore expeditiously but not later than a
period of three months from the date of receipt of a copy of
D this judgment and order.
ORDER BY THE COURT
In the light of separate opinions delivered by us in the
above-mentioned matters, we pass the following order:
E
(1) Criminal Appeal No.617 of 2010 (wrongly numbered
as Criminal Appeals No.617-627/2010) filed by B.M Satija,
Inspector DVB and Criminal Appeal No.604 of 2010 filed by
Bir Singh, Senior Fitter, DVB are partly allowed and their
convictions altered to Sections 337 and 338 read with Section
F 36 of the IPC. The sentence awarded to them shall, however,
remain unaltered.
(2) Criminal Appeals No.597, 598 and 599 of 2010 filed
by Sushil Ansal, Gopal Ansal and Harsarup Panwar
G respectively in so far as the same assail/challenge the
conviction of the appellants for offences punishable under
Section 304A read with Section 36 of the IPC and Sections
337 and 338 read with Section 36 of the IPC shall stand
dismissed and their conviction affirmed.
H
SUSHIL ANSAL v. STATE THROUGH CBI 779
(3) Criminal Appeals No.607 to 612 and 614 to 616 of A
2010 filed by the CBI challenging the orders of acquittal of the
respondents in those appeals shall stand dismissed.
(4) Criminal Appeals No.597, 598 and 599 of 2010 filed
by the appellants in those appeals and Criminal Appeals
B
No.605, 606 and 613 of 2010 filed by the State and Criminal
Appeals No.600-602 of 2010 filed by the Association of
Victims of Uphaar Tragedy to the extent the said appeals
involve the question of quantum of sentence to be awarded to
the convicted appellants in the appeals mentioned above shall C
stand referred to a three-Judge Bench.
Registry to place the papers before Hon'ble the Chief
Justice for constitution of an appropriate Bench.
Rajendra Prasad Some Appeals disposed of & other Appeals
referred to-three -Judge Bench.
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