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
-----------------------
15
9
1
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.
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[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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