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Tuesday, February 14, 2017

Victims of Uphaar Tragedy=As regards Section 65 IPC which puts a limit of imprisonment for default sentence upto ¼ of the term of imprisonment, the grievance against higher default sentence, if any, can be only by the accused and not by the State. Moreover, it is not a case of higher default sentence being awarded but of giving option to pay higher for reduced sentence. There is, thus, no conflict with sentence prescribed by IPC as submitted by the review petitioners. There is also no merit in the contention that once the Court felt that higher sentence was required to be imposed, sentence less than one year cannot be awarded. Order of the Court has to be seen as a whole and cannot be split into different sentences[4]. The operative part of the order has already been quoted hereinabove which shows that the Court has tried to balance the interest of justice and while holding that sentence was required to be enhanced, it was added that in lieu of additional period of enhanced sentence, substantial amount of fine was required to be imposed and the fine was to be utilized for setting up of or upgrading the trauma centres of hospitals managed by the Government of Delhi. It was also noted that having regard to the advanced age of Sushil Ansal (who was 74 years as per observations in Order dated 05.03.2014 and now must be 77 years) and who had already undergone sentence of 5-6 months and with remission of 9 months out of sentence of one year awarded by the High Court, further imprisonment was not necessary if he paid the imposed fine. Same sentence was applied to Gopal Ansal. Same principle was also followed for some other accused which has not been challenged. It is also necessary to mention that higher fine cannot be read as extra benefit to a rich person but has been imposed on account of capacity to pay. There is neither any illegality nor any impropriety warranting review of said order passed by this Court=no merit in the Review Petitions and the same are dismissed..

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA



                       CRIMINAL APPELLATE JURISDICTION



               REVIEW PETITION (CRIMINAL) NOS. 712-714 OF 2015
                                     IN
                    CRIMINAL APPEALS NOS. 600-602 OF 2010

                                    WITH

               REVIEW PETITION (CRIMINAL) NOS. 770-773 OF 2015
                                     IN
             CRIMINAL APPEAL NOS. 597, 598, 605 AND 606 OF 2010



ASSOCIATION OF VICTIMS OF
UPHAAR TRAGEDY                                ... APPELLANT (S)


                                   VERSUS



SUSHIL ANSAL AND ANOTHER                           ... RESPONDENT (S)


                                O  R  D  E  R

KURIAN, J.:




Review Petitioners seek modification mainly of the sentence awarded  to  the
accused – Sushil Ansal and Gopal Ansal as  per  the  Orders  of  this  Court
dated 19.08.2015 and 22.09.2015 in the Criminal Appeals.   It  is  the  main
contention of Mr. Harish N. Salve, learned Senior Counsel appearing for  the
Central Bureau of Investigation that there is no provision for  substitution
of sentence by fine. It is also the case of the Review Petitioners that  the
accused-1 and 2 deserve the maximum sentence under  Section  304  A  of  The
Indian Penal Code, 1860 (hereinafter referred  to  as  “the  Code”).  Having
also heard Mr. Ashok H. Desai, Mr. Salman Khurshid, Mr.  K.T.S.  Tulsi,  Mr.
K. Radhakrishnan and Ms. Rebecca John, learned Senior Counsels appearing  on
both sides, we feel it necessary to refer to the background of the  case  as
reflected in the various orders passed by this Court.

In Sushil Ansal v. State Through  Central  Bureau  of  Investigation[1],  at
paragraphs-27 and 28, this Court dealt with the conviction and  sentence  of
the trial court:

“27. 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  304-A,  337  and  338
read with Section 36 IPC and sentenced each one of them to undergo  rigorous
imprisonment for a period of two years with a fine of Rs 5000 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  1000  or  undergo
two months’ imprisonment in default. 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  similarly  to  undergo  two  years’
rigorous imprisonment and a fine of Rs 5000 besides default sentence of  six
months’ 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 well  as  gatekeeper  Manmohan
Uniyal (A-8)  under  Section  304  read  with  Section  36  IPC  proved  and
sentenced them to undergo rigorous imprisonment for a period of seven  years
with a fine of Rs 5000 and a default sentence of six months.

28. B.M.  Satija  (A-9)  and  A.K.  Gera  (A-10)  who  happened  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  under  Section  304  read
with  Section  36  IPC  and  sentenced  to  undergo  seven  years’  rigorous
imprisonment besides a fine of  Rs  5000  and  a  default  sentence  of  six
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  abated.  Not  only  that,  the  trial   court   directed   further
investigation into the matter under Section 173(8) CrPC 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 such permits.”

                                                         (Emphasis supplied)



Paragraph-29 deals with details of appeals filed in High Court:

“29. Aggrieved by the judgment and order passed against  them,  all  the  12
accused persons convicted by the trial court 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 that the same convicted the accused  persons  only  for  offences
punishable under Section 304-A IPC instead of Section 304 Part II IPC.”

                                                         (Emphasis supplied)


Paragraph-45 deals with the order passed by the High Court:

“45. The High Court on the above  findings       upheld  the  conviction  of
Sushil Ansal (A-1) and Gopal Ansal (A-2). It also upheld the  conviction  of
H.S. Panwar (A-15) for offences punishable under  Sections  304-A,  337  and
338 read with Section 36 IPC but reduced the sentence awarded to them  under
Section 304-A to one year’s 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  year’s
rigorous imprisonment with  the  direction  that  the  sentences  shall  run
concurrently including the sentence awarded to the Ansal brothers  (A-1  and
A-2) under Section 14 of the Cinematograph Act for which too  the  said  two
accused persons were convicted.”

                                                         (Emphasis supplied)


Paragraph-48 deals with the appeals before this Court:

“48. The appeals have been filed  before  us  by  all  those  convicted  and
sentenced to  undergo  imprisonment  by  the  High  Court,  except  for  the
convicted gatekeeper, Manmohan Uniyal (A-8) who has served out the  sentence
awarded to him by the courts below. We also have before us Criminal  Appeals
Nos. 605-616 of 2010 filed by CBI challenging the acquittal recorded by  the
High Court in favour of the four persons mentioned  above.  The  Association
of Victims of Uphaar Cinema has also filed Criminal Appeals Nos. 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.”

                                                         (Emphasis supplied)


In short, the High Court upheld  the  conviction  of  Sushil  Ansal-A-1  and
Gopal Ansal-A-2 under Sections 304-A, 337  and  338  read  with  36  of  the
Indian Penal Code 1860 but reduced the sentence under Section 304-A IPC,  to
one year rigorous imprisonment, under  Section  337  to  three  months,  and
under Section 338 to one year. All sentences were to run concurrently.
All convicted persons filed appeals before this  Court.  Central  Bureau  of
Investigation also filed Appeal Nos. 605-616 of  2010.  The  Association  of
Victims of Uphaar Cinema filed Appeal Nos.600-602 of  2010  challenging  the
acquittal and for retrial of all accused for the  offence  punishable  under
Section 304 Part II of IPC.
Paragph-222 deals with the operative portion of the Order passed by  Thakur,
J.:
“222.1. Criminal Appeals Nos. 597 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.
222.2. Criminal Appeal  No.  599  of  2010  filed  by  the  Divisional  Fire
Officer, H.S. Panwar (A-15) is also dismissed upholding his  conviction  and
sentence.
222.3. Criminal Appeals Nos. 617-627 of 2010 and No. 604 of  2010  filed  by
DVB Inspector B.M. Satija (A-9) and  Senior  Fitter  Bir  Singh  (A-11)  are
partly allowed 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.
222.4. Criminal Appeals Nos. 605-616 of  2010  filed  by  CBI  and  Criminal
Appeals Nos. 600-602 of 2010 filed by the Association of Victims  of  Uphaar
Tragedy are dismissed.”
                                                         (Emphasis supplied)

Gyan Sudha Misra, J., at paragraph-262, was  of  the  view  that  additional
sentence of one year should be awarded but the same could be substituted  by
substantial amount of fine.
“262. Hence, I am of the view that the interest of justice  to  some  extent
would be served by imposing on the appellant-accused 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  cannot  absolve  itself  from  compensating  the
victims of Uphaar tragedy, represented by AVUT.”

                                                         (Emphasis supplied)


At paragraph-263, it  has  been  further  held  that  the  sentence  already
undergone by A-1-Sushil Ansal should be treated as sufficient.
“263. Thus, while I uphold the conviction and sentence of Appellant 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 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 undergone by him may be treated as sufficient in  the  said
appeal as he has already served a 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.”
                                                         (Emphasis supplied)

At paragraph-267, it was further ordered that A-1 and  A-2  will  pay  Rs.50
crores each in lieu of the enhanced sentence of one year.

“267. 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… .”
                                                         (Emphasis supplied)


Order of the Court, to the extent relevant, is at paragraph-270.4:
“270.4. Criminal Appeals Nos. 597-599 of 2010 filed  by  the  appellants  in
those appeals and Criminal Appeals Nos. 605, 606 and 613 of  2010  filed  by
the  State  and  Criminal  Appeals  Nos.  600-602  of  2010  filed  by   the
Association of Victims of  Uphaar  Tragedy  to  the  extent  that  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.”
                                                         (Emphasis supplied)

The Order by the three-Judge Bench is reported  in  Sushil  Ansal  v.  State
Through  Central  Bureau  of  Investigation[2].  Paragraphs-17  and  18  are
relevant:
“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  IPC  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 (A-
1). On the principle of parity, the case of Gopal Ansal (A-2) will stand  on
the same footing as that  of  Sushil  Ansal  (A-1).  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.”

                                                         (Emphasis supplied)



Thus, the emerging position is – Both Thakur, J. and Gyan  Sudha  Misra,  J.
were in agreement  as  far  as  minimum  period  of  one  year  sentence  is
concerned. However, Gyan Sudha Misra, J. was also of the view  that  in  the
nature of the tragedy and the negligence on the part  of  A-1  and  A-2  and
Delhi Vidyut Board, they should pay a hefty amount of fine for  the  purpose
of construction of a trauma centre. Yet, Gyan Sudha Misra, J. took  note  of
the fact that Sushil Ansal  has  served  major  part  of  the  sentence  and
considering also his age, took the view that the sentence already  undergone
by him should be treated as sufficient.

A close reading of the Order passed by Gyan Sudha Misra, J. would show  that
recovery of a large amount by way of fine to be used for the  trauma  centre
was the underlying idea in enhancing the punishment. The three-Judge  Bench,
on Reference, also took the view that in larger public  interest,  the  view
taken by Gyan Sudha Misra, J. should be upheld, but reduced the fine to  Rs.
30 crores each, apparently keeping in mind  that  the  victims  had  already
been compensated and that even, according to Gyan Sudha Misra, J.,  A-1  and
A-2 and Delhi Vidyut Board are liable to pay the fine (paragraph-262).

Thus, Gyan Sudha Misra, J. and three-Judge Bench took the view that  as  far
as  A-1-Sushil  Ansal  is  concerned,  taking  note  of  his   age   related
complications, the period already undergone by him should be sufficient,  in
case he pays Rs.30 crores.

On   principle   of   parity,   the   same   benefit   was    extended    to
    A-2-Gopal  Ansal;  but  he  never  had  a  case  of  any   age   related
complications. Therefore, it is  not  a  case  to  apply  the  principle  of
parity. To that extent, the Order needs to be reviewed.

Yet another error is the substitution of sentence by fine.  At  paragraph-18
of the Order under Review, agreeing with the view expressed  by  Gyan  Sudha
Misra, J., the Bench enhanced punishment to the maximum period of two  years
but substituted the additional period of one year  with  substantial  amount
of fine. The idea was to impose a heavy fine and utilize the  same  for  the
benefit of the public, as has been done in the  case  of  State  Through  PS
Lodhi Colony, New Delhi v. Sanjeev Nanda[3], popularly  known  as  “BMW  hit
and run case”. In that case, the conviction under Section 304-A was  altered
to 304 Part-II but reduced  the  period  of  sentence  to  the  one  already
undergone and the court imposed a fine of Rs.50 lakhs to  be  used  for  the
benefit of the victims in hit and run cases. There was also an order on  two
years of community service. In the peculiar facts of the  present  case,  in
larger public interest, Gyan Sudha  Misra,  J.  and  the  three-Judge  Bench
essentially  only  thought  it  appropriate  to  modify  the  punishment  to
imposition of heavy fine in addition to the sentence of imprisonment.

Imposition of expiatory fine in addition to incarceration would  also  serve
the penalogical purpose of deterrence having regard also to  recidivism.  It
may also be noted that under Section 304 A of IPC, either imprisonment  only
or with fine or fine alone, is the prescribed punishment. Having  regard  to
the wide discretion available to the court under Section 304 A,  and  having
regard to the fact that the High  Court  and  this  Court,  in  appeal,  had
limited the imprisonment to one year, in  our  view,  the  punishment  which
would  serve  deterrence  and  public  purpose  by  both  imprisonment   and
exemplary fine, would be an appropriate punishment  in  a  case  like  this.
Under Section 63 of IPC where no sum  is  expressed  to  which  a  fine  may
extend, the amount of fine to which the offender  is  liable  is  unlimited,
but should not be excessive. Having regard to the  gravity  of  the  offence
and the illegal gains made by the accused, the fine imposed to the  tune  of
Rs.60 crores is not excessive. However, there is no provision under the  IPC
for substitution of sentence by fine.  The  only  provision  is  on  default
sentence  under  Section  65  of  IPC.  Hence,  that  part   also   requires
correction.

Thus, the Orders dated 19.08.2015  and  22.09.2015  stand  reviewed  in  the
manner indicated herein below:

In the case of A-1-Sushil Ansal, having regard to the  advance  age  related
complications, as appreciated by the three-Judge Bench in  the  Order  dated
22.09.2015, and having regard to the fact  that,  of  the  one  year  period
imposed by the High Court, he  has  already  undergone  around  nine  months
including remission, his sentence of imprisonment is reduced to  the  period
undergone. However, he is also sentenced to a fine of  Rs.30  crores.  Thus,
in the peculiar facts of the case, as appreciated by Gyan  Sudha  Misra,  J.
and the three-Judge Bench, we decline the prayer for review of  sentence  on
A1-Sushil Ansal.

In the case  of  A-2-Gopal  Ansal,  the  period  of  sentence  of  one  year
imprisonment, as imposed by the High Court and concurred both by Thakur,  J.
and Gyan Sudha Misra, J., is maintained, but he is also sentenced to a  fine
of Rs.30 crores.

The fine thus recovered should be utilized for  the  purposes  indicated  by
Gyan Sudha Misra, J. in the Order dated 05.03.2014.

In default of payment of fine, both A-1 and A-2  shall  undergo  six  months
imprisonment, the maximum permissible under Section 65 of IPC.

A-2-Gopal Ansal is granted four  weeks  time  to  surrender  and  serve  the
remaining sentence.

                                                                ……………………….J.
                                                         (RANJAN GOGOI)




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

NEW DELHI;
FEBRUARY 9, 2017.
                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       criminal APPELLATE JURISDICTION

               REVIEW PETITION (criminal) NOS. 712-714 OF 2015
                                     IN

                    Criminal appeal Nos. 600-602 OF 2010



Association of victims of uphaar tragedy           ...Petitioner(s)

                                   VERSUS

sushil ansal & anr.
...Respondent(s)

                                   W i t h

               REVIEW PETITION (criminal) NOS. 770-773 OF 2015
                                     IN

              Criminal appeal Nos. 597, 598, 605 & 606 OF 2010



                                  O R D E R



1.    These Review Petitions seek review of the Orders of this  Court  dated
19.08.2015 & 22.09.2015 in Criminal Appeal Nos. 600-602 and Criminal  Appeal
Nos. 597,598, 605 and 606 of 2010.   Since  arguments  have  been  addressed
only with regard to the sentence awarded to accused Sushil Ansal  and  Gopal
Ansal, consideration in this order is confined to this aspect.



2.    The matters arise out of an  incident  dated  13.06.1997  of  fire  in
Uphaar Cinema, Delhi wherein 59  persons  lost  their  life  and  about  100
persons were injured.  On charge of criminal negligence, apart from  others,
Sushil Ansal the licencee for running  the  cinema  and  his  brother  Gopal
Ansal who was in fact conducting the  business  of  cinema,  were  convicted
under Sections 304-A, 337, 338 read with Section 36, IPC.  The  Trial  Court
sentenced them to undergo imprisonment upto two years which was  reduced  by
the High Court to one year.

A two Judge  bench  of  this  Court,  dealing  with  their  appeals  against
conviction and sentence, vide order dated 05.03.2014, upheld the  conviction
but differed on the quantum of sentence.  The said judgment is  reported  in
Sushil Ansal versus State  Through  CBI  (2014)  6  SCC  173.   In  view  of
difference of opinion the matter was referred to the three Judge  Bench  “to
the extent that  the  said  appeals  involve  the  question  of  quantum  of
sentence to be awarded to the convicted appellants in the appeals  mentioned
above”.

3.    The Three Judge Bench vide order dated 19.08.2015 held as follows :

“…the 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.”



4.    The review is  sought  mainly  on  the  ground  that  once  the  Court
expressed the view that sentence was  required  to  be  enhanced,  the  same
could not be directed to be reduced on payment of fine.  Reference has  been
made to Sections 63-65 of IPC which are as follows:

“63. Amount of fine.- Where no sum is expressed to which a fine may  extend,
the amount of fine to which the offender is liable is unlimited,  but  shall
not be excessive.

64. Sentence of imprisonment for non-payment of fine. In every  case  of  an
offence punishable with imprisonment as well as fine, in which the  offender
is sentenced to a fine, whether with or without imprisonment, and  in  every
case of an offence punishable with imprisonment or fine, or with fine  only,
in which the offender is sentenced to a fine. it shall be competent  to  the
Court which sentences such offender to  direct  by  the  sentence  that,  in
default of payment of the fine, the offender shall suffer  imprisonment  for
a certain  term,  which  imprisonment  shall  be  in  excess  of  any  other
imprisonment to which he may have been sentenced  or  to  which  he  may  be
liable under a commutation of a sentence.

65. Limit to imprisonment for non-payment of  fine,  when  imprisonment  and
fine awardable.--The term for which the Court directs  the  offender  to  be
imprisoned in default of payment of a fine shall not  exceed  one-fourth  of
the term of imprisonment which is the maximum fixed for the offence, if  the
offence be punishable with imprisonment as well as fine.”



5.    It was submitted that the default sentence  cannot  exceed  ¼  of  the
term of imprisonment prescribed for the  offence.   It  was  also  submitted
that undue sympathy in imposing inadequate sentence may lead to  miscarriage
of justice.  There should be element of fear in the  mind  of  offender  for
which adequate sentence was required to be imposed.  It was  also  submitted
that sentence  prescribed  under  Section  304-A  IPC  was  required  to  be
revisited by the law makers in light  of  observation  of  this  Court.   In
support  of  these   submissions,  reference  has  been  made   to   several
judgments1 to which detailed reference does not appear to  be  necessary  as
there is no dispute about the principle that adequate sentence as  warranted
in a fact situation has to be awarded by a Court.

6.    Opposing the above submissions learned counsel for  Sushil  Ansal  and
Gopal Ansal submitted that there  is  no  patent  error  which  may  justify
invocation of review jurisdiction.  The arguments now sought  to  be  raised
were before the Court when the order was passed by this  Court.  The  review
petition cannot be treated as an appeal in disguise.   Mere  possibility  of
two views cannot be a  ground  for  review.   Reference  was  also  made  to
several  decisions  of  this  Court2,   where  long  delay  in  pendency  of
proceedings, age, health and other factors have been taken into account  for
awarding sentence lesser than the maximum prescribed.  It is  not  necessary
to refer to the said decisions also as it is well settled that the  sentence
has to be awarded in the light of nature of  offence,  prescribed  sentence,
over  all  fact  situation,  mitigating   and   aggravating   circumstances,
including age of the offender, his  background,  possibility  of  return  to
normal life and need of the society.

7.    It was submitted that since relief can be moulded in individual  cases
having regard to the fact situation,  the sentence awarded  in  the  present
case is not in any manner illegal nor  unjustified  so  as  to  be  held  to
suffering from a patent error.

8.    I have given deep consideration to the rival submissions  and  perused
the record as well as the decisions relied upon by the learned  counsel  for
the parties.

9.    It may first be clarified that the reference before Three Judge  Bench
on account of difference of opinion on question of sentence was not  limited
to selection of one out of the two conflicting  opinions  but  to  determine
the quantum of sentence in view of difference of opinion  as  the  reference
order quoted hereinabove clearly shows3.  It may further be  noted  that  it
is not factually correct to assume that there was no difference  of  opinion
for imposing at least one year  sentence.   In  para  269  (of  SCC  supra),
Misra,  J.  observed  --“Thus,  the  appeals  bearing  Nos.597-598  of  2010
preferred by the appellants/respondents Sushil Ansal  and  Gopal  Ansal  are
dismissed except that the sentence imposed on  Appellant1  Sushil  Ansal  is
reduced to the period  already  undergone  considering  his  advanced  age.”
In para 263, it was observed that  … “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 undergone by him may be treated  as  sufficient
in the said appeal as he has already served a 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.”

In the order of Three Judge Bench reference to the above  observations  have
been made in the part of order already quoted above.

10.   As regards Section 65 IPC which  puts  a  limit  of  imprisonment  for
default sentence upto ¼ of the term of imprisonment, the  grievance  against
higher default sentence, if any, can be only by the accused and not  by  the
State.  Moreover, it is not a case of higher default sentence being  awarded
but of giving option to pay higher for reduced sentence.   There  is,  thus,
no conflict with sentence prescribed by  IPC  as  submitted  by  the  review
petitioners.  There is also no merit in the contention that once  the  Court
felt that higher sentence was required to be  imposed,  sentence  less  than
one year cannot be awarded.  Order of the Court has to be seen  as  a  whole
and cannot be split into different sentences[4].  The operative part of  the
order has already been quoted hereinabove which shows  that  the  Court  has
tried to balance the interest of justice and  while  holding  that  sentence
was required to be enhanced, it was added that in lieu of additional  period
of enhanced sentence, substantial amount of fine was required to be  imposed
and the fine was to be utilized for setting up of or  upgrading  the  trauma
centres of hospitals managed by the Government of Delhi.  It was also  noted
that having regard to the advanced age of Sushil Ansal (who was 74 years  as
per observations in Order dated 05.03.2014 and now must  be  77  years)  and
who had already undergone sentence of 5-6 months and  with  remission  of  9
months out of sentence of one  year  awarded  by  the  High  Court,  further
imprisonment was not necessary if he paid the imposed fine.   Same  sentence
was applied to Gopal Ansal.  Same  principle  was  also  followed  for  some
other accused which has not  been  challenged.   It  is  also  necessary  to
mention that higher fine cannot be read as extra benefit to  a  rich  person
but has been imposed on account of capacity to pay.  There  is  neither  any
illegality nor any impropriety warranting review of  said  order  passed  by
this Court.

11.   For above reasons, there is no merit in the Review Petitions  and  the
same are dismissed.


                  ……….....................................................J.
                                                         [adarsh kumar goel]

NEW DELHI
9th February, 2017.


-----------------------
[1]

       (2014) 6 SCC 173

[2]    (2015) 10 SCC 359

[3]    (2012) 8 SCC 450

1

      [4] Guru Basavaraj v. State of Karnataka (2012) 8 SCC 734
        Pritam Chauhan v. State (Govt. of NCT of Delhi) (2014) 9 SCC 637
        State of Punjab v. Saurabh Bakshi (2015) 5 SCC 182
        State of Punjab v. Balwinder Singh (2012) 2 SCC 182
        State of Karnataka v. Sharanappa Basanagouda Aregoudar (2002) 3 SCC
738 & (2002) SCC (Cri) 704.
        Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648
        Rattan Singh v. State of Punjab (1979) 4 SCC 719
        State of M.P. v. Surendra Singh (2015) 1 SCC 222
        Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770

2      State of M.P. v. Mehtab (2015) 5 SCC 197
         Manish Jalan v. State of Karnataka (2008) 8 SCC 225
         V.K. Verma v. CBI (2014) 3 SCC 485
         Labh Singh . v. State of Haryana  (2012) 11 SCC 690
         Nand Lal v. State of Uttarakhand . (2010) 4 SCC 562
         Beena Philipose. V. State of Kerala (2006) 7 SCC 414
         Devi Ram v. State of Haryana (2002) 10 SCC 76
              Beyas Mahto v. State of Bihar (2000) 9 SCC 509
             R.V. Lyngdoh v. State (Delhi) Spl. Estt. (1999) 9 SCC 645






3      (2014) 6 SCC 173, pg 332, Para 270.4,

[5]    [6] Goan Real Estate and Construction Ltd. vs. Union of India (2010)
5 SCC 388, para 31



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