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Wednesday, September 30, 2015

It is pertinent to note here that initially there were two exits in the balcony portion of the cinema theatre. One portion was open as an exit, whereas another had been closed down on account of certain additional seats placed near the exit. The additional seats were arranged with permission of all authorities concerned and even the second exit had also been closed with permission of all authorities concerned. The representatives of the departments concerned like Home Department, Police Department, Fire Department, etc. had visited the theatre before giving necessary permission for increase in the number of seats, approval of the changed layout of seats and for closure of the second exit.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.597 OF 2010



SUSHIL ANSAL                                  .....APPELLANT



                                VERSUS

STATE THROUGH CBI                      …..RESPONDENT

                                WITH

                       CRIMINAL APPEAL NO.598 OF 2010




GOPAL ANSAL                                .....APPELLANT



                                VERSUS

STATE THROUGH CBI                      …..RESPONDENT



    WITH

                       CRIMINAL APPEAL NO.599 OF 2010




HARSARUP PANWAR                        ……APPELLANT



                                VERSUS

STATE THROUGH CBI                      …..RESPONDENT



                               WITH

                    CRIMINAL APPEAL NOs.600-602 OF 2010,
                  605 OF 2010, 606 OF 2010 AND 613 OF 2010





                              1 J U D G M E N T




1 ANIL R. DAVE, J.



CRIMINAL APPEAL NOS.597 AND 598 OF 2010



1.    The aforestated appeals  had  been  initially  heard  by  two  Hon’ble
Judges of this Court.  Though the order of conviction  had  been  upheld  by
the learned Judges, on the subject of sentence the learned Judges  differed.
 Justice T.S. Thakur passed the following order on the sentence:

“(i)  Criminal Appeal Nos.597 of 2010 and 598 of 2010 filed by Sushil  Ansal
(A-1) and Gopal Ansal (A-2) respectively are hereby dismissed upholding  the
conviction and sentences awarded to them.”


Whereas Justice Gyan Sudha Mishra passed the following order:

“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 hundred crores) to be  shared  and  paid  by  A-1
Sushil Ansal and A-2 Gopal Ansal in equal measure i.e.  Rs  50  crores  each
and Rs 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  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  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  along
with  a  Super  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   AVUT/Uphaar   Victims’
Association. This trauma centre shall be treated as an extension  centre  of
the Safdarjung Hospital, New Delhi which is close to Uphaar Theatre and  was
the accident site which is hard-pressed  for  space  and  desperately  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  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 along with a  representative  of  AVUT  nominated  by  the
Association and the Hospital Superintendent, Safdarjung 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.”

2.    In view of the difference of opinion between the  two  learned  judges
regarding quantum of sentence, the matter  has  been  placed  before  us  in
pursuance of the following order dated 5.03.2014 :-
“4. Criminal Appeals No. 597, 598 and 599 of 2010 filed  by  the  appellants
in those appeals and Criminal Appeals 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  stand  referred  to  a  three-Judge
Bench”.

3.    We have heard the learned counsel appearing for the parties  and  have
also carefully gone through  that  portion  of  the  judgment,  whereby  the
sentence has been imposed upon the Appellants.

4.    Upon hearing  the  learned  counsel  and  on  perusal  of  the  record
pertaining to the case, we find that the root cause of  the  fire  was  1000
KVA transformer installed and maintained by the Delhi  Vidyut  Board  (DVB),
which was in the premises of Uphaar Cinema. The said 1000  KVA  transformer,
even though located within the Uphaar cinema premises,  did  not  belong  to
the appellants.

5.    The said  transformer  caught  fire  on  13.6.1997  around  6.55  a.m.
damaging the area surrounding the transformer.  The fire was  brought  under
control by 7.25 a.m. and it was repaired by two employees of the  DVB  along
with Senior Fitter, Bir Singh, who were possibly  not  highly  qualified  in
the field of Electrical Engineering.  The repairs were carried  out  without
use of any  special  equipment.  The  said  transformer  was  recharged  for
resumption of electric supply by 11.30 a.m. on the same day.


6.    As the factual matrix  would  further  unfurl,  on  the  fateful  day,
around 3:00pm, the matinee show of film ‘Border’ started. Between  3:55  and
4:55 p.m., there was a general power shut  down;  however  the  Cinema  show
continued. Immediately, on resumption of electricity at 4:55 pm,  there  was
intense and heavy sparking in the DVB transformer,  which  led  to  B  phase
cable detaching, sliding down of the B  phase  cable,  forming  an  arc  and
ultimately resulting in rupture of the Transformer fin. Through  this  slit,
the transformer oil spilled out, caught fire  and  consequently  set  ablaze
several vehicles parked nearby in the stilt floor. This fire  generated  hot
thick black  smoke,  which  travelled  upwards,  accelerated  by  a  Chimney
effect.

7.  The smoke entered the hall from the staircases, air  conditioning  ducts
as well as the area beneath the screen  and  the  audience  sitting  in  the
ground floor of the auditorium escaped immediately.   The  audience  sitting
in the balcony found it hard to escape as there were no lights due  to  lack
of power supply, nor were there any  emergency  lights  or  lights  to  give
indication about the exit.  Moreover, there were no warnings through  public
address system for immediate evacuation in an orderly  manner.  The  closure
of the right side exit,  elimination  of  one  exit  and  the  narrowing  of
another exit as well as introduction of certain seats  near  the  left  side
exit, together with bolting of certain doors in  the  balcony  caused  panic
and resulted in delayed escape of most of the spectators  occupying  balcony
seats. Most  of  the  spectators  were  subsequently  rescued  by  the  fire
fighters, but they were severely affected by the smoke. The  fire  was  soon
declared a major one and rescue operations continued till about 7:30pm.  The
entire mishap claimed lives of 59 persons besides  injuries  to  nearly  100
others.


8.   It is pertinent to note here that initially there  were  two  exits  in
the balcony portion of the cinema theatre. One portion was open as an  exit,
whereas another had been closed down on account of certain additional  seats
placed near the exit. The additional seats were  arranged  with   permission
of all authorities concerned and even the second exit had also  been  closed
with permission of all authorities concerned.  The  representatives  of  the
departments  concerned  like  Home  Department,  Police   Department,   Fire
Department, etc. had visited the theatre before giving necessary  permission
for increase in the number of seats,  approval  of  the  changed  layout  of
seats and for closure of the second exit.

9.    Under these circumstances,  when  another  exit  had  been  closed  on
account of arrangement of additional seats, which had been done with  proper
permission of the concerned authorities, the spectators of the  balcony  had
to rush only towards one exit which was leading to  the  staircase,  already
occupied with toxic gases including carbon monoxide.

10.   Due to inhalation of toxic gases including carbon  monoxide,  most  of
the spectators, who had occupied balcony seats, collapsed in the balcony  or
on the staircase  and  ultimately  the  unfortunate  mishap,  which  is  the
subject matter of this case, took place.

11.   In view of the aforestated undisputed facts, the issue with regard  to
imposition of sentence upon the appellants is to be decided by us.   We  are
concerned with imposition of sentence  in  a  criminal  case  and  not  with
awarding  damages  in  a  civil  case.  Principles  for  deciding  both  are
different.

12.   In the  instant  case,  we  are  only  concerned  with  imposition  of
appropriate sentence for the reason that the appellants  have  already  been
convicted of the offences under Sections 304-A/337/338 read with Section  36
of the Indian Penal Code (IPC) and Section  14  of  the  Cinematograph  Act,
1952 and the conviction has been affirmed by this Court.

13.   One can say that if the second exit leading to another  staircase  had
not been closed, possibly the damage and deaths could have been  less.   The
reason for which the second exit was closed was  arrangement  of  additional
seats and change of layout of seats in the  balcony.   The  appellants,  the
owners of the cinema premises, were aware of the  fact  that  one  exit  had
been closed due to addition of seats and change in the layout of  the  seats
and the said fact could  have  exposed  the  spectators  to  the  risk  they
actually faced, which ultimately resulted  into  the  abovesaid  mishap.  Be
that as it may, the fact remains that the appellants have been found  guilty
and they have been convicted.

14.   On the issue of sentence, one of our brother Judges, T.S.  Thakur,  J.
has upheld rigorous imprisonment of one year which has been imposed  by  the
High Court.   So far as Gyan Sudha Misra, J. is concerned, she  was  of  the
view that the sentence imposed was insufficient and therefore, it should  be
enhanced and possibly because the heirs of the victims were  not  interested
in getting compensation, she was of the view that  appropriate  fine  should
be imposed upon the appellants, which should be used for  a  public  purpose
so that in future, in the event of any such mishap, the injured persons  can
be given prompt and effective treatment.  The learned Judge had,  therefore,
perhaps  rightly  thought  about  imposing  rigorous  imprisonment  of   one
additional year and looking at the fact that the victims  had  already  lost
their lives and the amount  of  fine  which  could  be  recovered  from  the
appellants can be used for  a  better  public  purpose,  the  learned  Judge
imposed fine of Rs.50 crore on  each  of  the  appellants  in  lieu  of  the
additional sentence which had been proposed by observing:-

“40. Hence, I am of the view that interest of justice to 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  substantial  sum
of fine to be shared equally by the Appellants Sushil Ansal and Gopal  Ansal
along with DVB which also can  not  absolve  itself  from  compensating  the
victims of Uphaar tragedy represented by the AVUT”.


“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 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
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
allowed to be substituted by substantial compensation  which  were  paid  to
the victims or their legal representatives”.

15.   Shri Ram Jethmalani, learned senior counsel,  submitted  that  in  the
facts and circumstances of the present case, the amount of  fine  of  Rs.100
crore may be reduced and the view expressed  by  Misra,  J.  to  reduce  the
sentence of appellant - Sushil Ansal (A-1) to the period  already  undergone
considering his advanced age, be also made applicable to Gopal  Ansal  (A-2)
on the principle of parity.  He  submitted  that  both  the  appellants  had
already undergone substantial part of the sentence out of  sentence  of  one
year awarded to them and were willing  to  pay  substantial  amount  towards
fine in lieu of the  undergoing  remaining  period  of  sentence.   He  also
pointed out that out of  one  year  sentence,  they  had  already  undergone
substantive sentence of 5-6 months and with remissions,  sentence  undergone
worked out to about nine months.

16.   We have duly considered the matter.  It hardly needs to  be  mentioned
that an appropriate sentence has to be awarded by taking into  consideration
the gravity of offence, the manner of commission, the  age  of  the  accused
and other mitigating and aggravating  circumstances.   The  sentence  should
neither be excessively harsh nor ridiculously low.

17.   We are conscious of the fact that matter of this  magnitude  may  call
for a higher sentence, but the Court has  to  limit  itself  to  the  choice
available under the law prescribing sentence. The fact that remains is  that
the maximum sentence prescribed under the law is period  of  two  years  and
the High Court had chosen, in the facts and circumstances of  the  case,  to
award sentence of one year which has been approved by  Thakur,  J.   In  the
dissenting opinion by Misra, J. the modification is  that  the  sentence  be
enhanced but giving an option to pay  substantial  amount  in  lieu  of  the
enhanced sentence with further direction to reduce the jail sentence to  the
period already undergone,  if  the  amount  of  fine  in  lieu  of  enhanced
sentence is paid.

18.   After having considered the facts of the case, the views expressed  by
both the learned Judges and the arguments advanced by  the  learned  counsel
appearing for both sides, we are in agreement with  the  view  expressed  by
Misra, J. that sentence awarded by the High Court needs to  be  enhanced  to
the maximum period  of  two  years  under  Section  304-A  but  in  lieu  of
additional period of sentence of one year, the substantial  amount  of  fine
needs to be imposed.  We are further of the  view  that  in  case  the  said
amount of fine is paid,  the  sentence  should  be  reduced  to  the  period
already undergone, as indicated by Misra, J. in the  case  of  Sushil  Ansal
(A1). On the principle of parity, the case of Gopal Ansal  (A2)  will  stand
on the same footing as that of Sushil Ansal  (A1).   Thus,  we  are  of  the
considered opinion that ends of justice would meet  if  the  appellants  are
directed to pay fine so that the amount of fine can be used either  for  the
purpose of setting up a Trauma Centre in  NCT  of  Delhi  or  for  upgrading
Trauma Centres of Hospitals managed in NCT of Delhi  by  the  Government  of
Delhi.

19.   We, therefore, direct that a fine of Rs.30  crore  on  each  appellant
should be imposed and if the said fine is paid  within  a  period  of  three
months, the sentence of the appellants be reduced to  the  sentence  already
undergone.  We have noted the fact that as appellant no.1  is  fairly  aged,
it may not be fruitful to ask him to undergo rigorous imprisonment.  On  the
ground of parity and  on  the  peculiar  facts  of  this  case,  so  far  as
appellant no.2 may also not be constrained to undergo the  sentence,  if  he
also pays the same amount of fine. If the aforestated  amount  is  not  paid
within three months from the date of order  dated  19th  August,  2015,  the
appellants shall undergo two years’  rigorous  imprisonment,  including  the
sentence already undergone.

CRIMINAL APPEAL NO. 599/2010:-

20.   As regards the conviction of Appellant H.S. Panwar (A-15) assailed  in
Criminal Appeal No.  599/2010,  the  Ld.  Judges  dismissed  the  afore-said
appeal and affirmed the conviction u/s. 304-A/337/338 read with S.  36  IPC.
On the question of quantum of sentence qua  Appellant  H.S.  Panwar  (A-15),
the matter was placed before us as stated above.

21. In view of the facts discussed above and on the  ground  of  parity,  we
direct that Appellant  Harsarup  Panwar  (A-15)  shall  stand  sentenced  to
undergo rigorous imprisonment for  one  year.   However,  having  regard  to
advanced age and diseases like alzheimer’s disease suffered by  the  accused
and other peculiar facts and circumstances, if he pays Rs.10 lakh by way  of
fine, the sentence will stand reduced to the period  already  undergone.  If
he fails to pay the aforestated amount within three months  from  the  order
dated 19th August,  2015,  he  shall  undergo  the  sentence  of  one  year,
including the term which he  has  already  undergone.   Now,  we  have  been
informed that Appellant Harsarup Panwar (A-15) has already paid  Rs.10  lakh
as per operative order pronounced on 19th August, 2015.

22.  The aforestated fine imposed upon the appellants  in  Criminal  Appeals
No. 597, 598 and 599 of 2010 filed by Sushil Ansal (A-1), Gopal Ansal  (A-2)
and Harsarup Panwar (A-15) shall be given by way of a demand  draft  to  the
Chief Secretary of Delhi Government for setting up a new  trauma  centre  or
for upgrading the existing  trauma  centres  of  hospitals  managed  by  the
Government of NCT of Delhi.



CRIMINAL APPEAL NOs.600-602, 605, 606 and 613 of 2010


23. Consequently, Criminal Appeal No. 605, 606 and 613 of 2010 filed by  the
State and Criminal Appeal No. 600-602 of 2010 filed by  the  Association  of
Victims of Uphaar Tragedy are disposed of.

24.   In view of the above order, the impugned judgment stands  modified  so
far as the question of imposition of sentence is concerned and  the  appeals
are disposed of as partly allowed.


25.   We had passed the operative part of the order on  19th  August,  2015,
but since the Court time was almost over, we have now given the reasons  for
the said order.


                                       ………................................J.
                                      (ANIL R. DAVE)



                                       ………................................J.
                                      (KURIAN JOSEPH)


                                        ………...............................J.
                                               (ADARSH KUMAR GOEL)
NEW DELHI
SEPTEMBER 22,  2015

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