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
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
