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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITION

CRIMINAL APPEAL NO.597 OF 2010

Sushil Ansal …Appellant

Versus

State Through CBI …Respondent

(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010,

604/2010, 605-616/2010 and 617-627/2010)

J U D G M E N T

T.S. THAKUR, J.

Enforcement of laws is as important as their enactment,

especially where such laws deal with safety and security of

citizens and create continuing obligations that call for

constant vigil by those entrusted with their administration.

Callous indifference and apathy, extraneous influence or

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considerations and the cynical “Chalta Hai” attitude more

often than not costs the society dearly in man-made

tragedies whether in the form of fire incidents, collapse of

buildings and bridges, poisonous gas leaks or the like. Short-

lived media attention followed by investigations that at times

leave the end result flawed and a long winding criminal trial

in which the witnesses predecease their depositions or switch

sides under pressure or for gain and where even the victims

or their families lose interest brings the sad saga to an

uncertain end. A somewhat similar story is presented in

these appeals by special leave arising out of a common

judgment and order dated 19

th

December, 2008 passed by a

Single Judge of High Court of Delhi whereby a batch of

criminal appeals filed by those convicted by the trial Court for

commission of different offences and the sentences awarded

to them were disposed of alongwith criminal revision petition

no.17 of 2008 filed by the Association of Victims of Uphaar

Tragedy (hereinafter, “AVUT”) that led to the death of 59

persons besides injuries to nearly 100 others.

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2.The High Court has, on a reappraisal of the evidence

adduced at the trial, acquitted five of the appellants before it

while upholding the convictions of the rest with or without

modification of the nature of offence in some cases and

reduction of the sentence in others. We shall in the course of

this judgment refer in detail to the view taken by the Trial

Court and the extent and nature of modification made to that

by the High Court in the impugned judgment.

3.Suffice it to say that the fire incident that claimed

valuable human lives took place in the heart of the capital

city of Delhi in a cinema building situate in its posh Green

Park Extension area on 13

th

June, 1997. The factual backdrop

in which the unfortunate victims lost their lives or suffered

injuries has been set out by the Trial Court in its judgment

and reiterated by the High Court in the order passed by it

without any significant changes in the narrative. In the Trial

Court, as in the High Court and even before us there was no

serious dispute as to the cause of the fire leading to the loss

of human lives. We, therefore, would remain content with

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the broad narration of the facts as are available from the

order passed by the Trial Court and that passed by the High

Court, which are as under:

The Incident:

4.Uphaar Cinema building, situate on a plot of 2480

square yards at Green Park Extension Shopping Centre, New

Delhi, comprised a cinema auditorium with a sanctioned

capacity of 750 seats besides a balcony with a sanctioned

capacity of 250 seats. The cinema auditorium comprised the

first floor of the cinema complex while the balcony was

constructed on the second floor. The ground floor of the

building comprised a parking lot besides three separate

rooms on the western side, one of which was used for placing

a 500 KVA electric transformer that supplied electric energy

to the cinema theatre while the other was used for housing a

1000 KVA transformer that was installed and maintained by

the Delhi Vidyut Board (hereinafter referred to as “DVB”). It

is common ground that the second transformer even though

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located within the cinema premises, did not supply electricity

to the cinema but rather to some of the tenants occupying

parts of the commercial complex that formed a part of the

building and some other consumers from the locality.

5.The prosecution case is that on 13

th

June, 1997 at about

6.55 a.m. the bigger of the two transformers installed and

maintained by DVB on the ground floor of the Uphaar

Cinema building caught fire. The fire was brought under

control by 7.25 a.m. Inspection of the transformer by the

Superintendant of the DVB and his team revealed that three

of the low tension cable leads of the transformer had been

partially burnt. At about 10.30 a.m., B.M. Satija (A-9) and

A.K. Gera (A-10), Inspectors from DVB along with Senior

Fitter, Bir Singh (A-11) conducted repairs on the transformer

by replacing two aluminium sockets on the B-Phase of the

low tension cable leads. The repairs, it appear, were carried

out with the help of a dye and hammer without the use of a

crimping machine. The transformer was recharged for

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resumption of electric supply by 11.30 a.m. on 13

th

June,

1997.

6.The prosecution alleges that repairs conducted on the

transformer in the earlier part of the day were unsatisfactory

and resulted in loose connections that caused sparking on

the B-Phase of the transformer where such repairs were

carried out. This resulted in the loosening of one of the

cables of the transformer which eventually came off and

started dangling loose along the radiator and burnt a hole in

the radiator fin. Through this hole the transformer oil started

leaking out which, on account of the heat generated by the

loose cable touching against the radiator, ignited the oil at

about 4.55 p.m. on 13

th

June, 1997. Since the transformer

did not have an oil soak pit as required under the regulations

and the standard practice, the oil that spread out of the

enclosure continued leaking and spreading the fire to the

adjacent parking lot where cars were parked at a distance of

no more than a metre from the door of the transformer. The

result was that all the cars parked in the parking area on the

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ground floor of the cinema hall were ablaze. Smoke started

billowing in the northern and southward directions in the

parking lot of the cinema complex. The northern bound

smoke encountered a gate which was adjacent to a staircase

leading to the cinema auditorium on the first floor. Due to

chimney effect, the smoke gushed into the stairwell and

eventually entered the cinema auditorium through a door

and through the air conditioning ducts. The southward bound

smoke similarly travelled aerially through another staircase

and into the lower portion of the balcony of the auditorium

from the left side. All this happened while a large number of

people were seated in the auditorium enjoying the matinee

show of ‘BORDER’, a popular Hindi movie with a patriotic

theme. Because of smoke and carbon monoxide released by

the burning oil and other combustible material, the people in

the auditorium started suffocating.

7.The Shift In-charge of the Green Park Complaint Centre

of DVB received a telephonic message from K.L. Malhotra (A-

4), since deceased, who was the Deputy General Manager of

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Uphaar Cinema at the relevant point of time, regarding the

fire. It was only then that the AIIMS grid to which the

transformer in question was connected was switched off and

the flow of energy to the cinema complex stopped. According

to the prosecution the supply of the 11 KV outgoing Green

Park Feeder tripped off at 5.05 p.m. thereby discontinuing

the supply of energy to the cinema.

8.Inside the auditorium and balcony there was complete

pandemonium. The people in the balcony are said to have

rushed towards the exits in pitch darkness as there were

neither emergency lights nor any cinema staff to help or

guide them. The prosecution alleged that no public

announcement regarding the fire was made to those inside

the auditorium or the balcony, nor were any fire alarms set

off, no matter the management and the employees of the

Uphaar Cinema were aware of the fact that a fire had broken

out. Even the Projector Operator was not given instructions

to stop the film while the fire was raging nor was any patron

informed about the situation outside. On the contrary, the

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doors to the middle entrance of the balcony were found to be

bolted by the gatekeeper-Manmohan Uniyal (A-8) who had

left his duty without handing over charge to his reliever.

More importantly, the prosecution case is that the addition of

a private 8-seater box had completely closed off the exit on

the right side of the balcony, while the addition of a total of

52 extra seats over the years had completely blocked the

gangway on the right side of the balcony. Similarly, the

gangway on the right of the middle entrance was significantly

narrower than required under the regulations. It was alleged

that Sushil Ansal (A-1) and Gopal Ansal (A-2), the owners of

the cinema hall, had knowledge of these deviations from fire

safety norms despite which they had continued exhibiting

films, thereby endangering the lives of all those who

patronized the theatre. All these obstructions, deviations,

violations and deficiencies had, according to the prosecution,

resulted in the victims getting trapped in the balcony for at

least 10-15 minutes exposing them to lethal carbon

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monoxide, to which as many as 59 persons eventually

succumbed.

9.Rescue operations attempted by the fire tenders from

the Bhikaji Cama Place and Safdarjung Fire Stations were

undertaken after the Delhi Fire Service received a complaint

from K.L. Malhotra (A-4), since deceased, at 5.10 p.m. The

fire tenders took nearly forty five minutes to one hour to

extinguish the fire and to rescue the persons trapped in the

balcony by opening the bolted doors and taking those who

had collapsed and those injured to the hospitals. No one from

the staff or management of the theatre was, according to the

prosecution, present at the spot to lend a helping hand in the

rescue operations.

Investigation and Charges :

10.Investigation into the fire incident and the resultant

causalities started pursuant to FIR No.432/97 registered at

Police Station, Hauz Khas on the basis of a written complaint

filed by one Sudhir Kumar, Security Guard, employed by the

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management of the cinema complex. The investigation was

initially conducted by the Delhi Police but was soon thereafter

transferred to the Crime Branch and eventually to the

Central Bureau of Investigation under the Delhi Special Police

Establishment Act, 1946. The CBI registered case bearing

No.RC-3(S)/97/SIC.IV/New Delhi on 25

th

July, 1997.

11.The investigating agencies first looked into the incidents

of fire and got prepared and seized the record relevant

thereto, including a report signed by B.M. Satija (A-9), A.K.

Gera (A-10), Inspectors and Bir Singh (A-11) Senior Fitter,

which dealt with the nature of repair that was conducted on

the DVB transformer after the first incident. The investigating

agencies also looked into the chain of events that led to the

second fire at around 5.00 p.m. and the entry of smoke into

the cinema auditorium and the balcony. A report from the

Central Building Research Institute was also obtained by the

investigating agencies on 17

th

August, 1997 under the

signatures of T.P. Sharma (PW-25). Expert opinion of K.V.

Singh, Executive Engineer (Electrical), PWD was also

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obtained by the investigating officers on 29

th

June, 1997, in

addition to two CFSL reports prepared by Dr. Rajender Singh

forwarded to the Hauz Khas Police Station on 27

th

June, 1997

and to the CBI on 11

th

August, 1997. These reports were

marked Exs. PW 64/B and PW 64/D at the trial.

12.The investigating officers also examined the cause of

malfunctioning of the DVB transformer and obtained a report

Ex. PW24/A in that regard from Mr. K.L. Grover, Electrical

Inspector and Mr. A.K. Aggarwal, Assistant Electrical

Inspector on 25

th

June, 1997. The report obtained from

Professor M.L. Kothari of IIT, New Delhi, on 2

nd

July, 1997

analysed and attributed the cause of fire to malfunctioning of

the DVB transformer.

13.The investigating agencies then looked into the fire

safety deviations in the Uphaar Cinema building to determine

whether the same had contributed to the fire and hindered

the escape of those seated in the cinema auditorium and

balcony from the poisonous carbon monoxide that had

polluted the atmosphere inside the complex. Reports from

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Executive Engineers, MCD were also obtained in this regard.

A Panchnama depicting floor-wise deviations in the Uphaar

Cinema building and an Inspection-cum-Scrutiny report

marked as Ex.PW 2/A indicating the structural deviations was

also submitted by the MCD to the CBI on 11

th

August, 1997.

14.Similarly, the investigating agencies collected a fire

report marked Ex. PW 49/E from the Delhi Fire Service

regarding the rescue operations conducted by the fire service

personnel on the date of the occurrence.

15.Post-mortem conducted on the dead body of Captain

M.S. Bhinder, one of the unfortunate victims, revealed that

the cause of death was asphyxiation. From the report of Dr.

T.D. Dogra, Forensic Expert, obtained on 18

th

September,

1997, the investigating officers concluded that the rapid

death of the victims could have been caused by inhalation of

a combination of toxic gases including carbon monoxide and

sulphur dioxide which were produced by combustion of

articles like diesel, petrol, rubber and styrene.

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16.Statements of a large number of witnesses relevant to

the fire incident, its causes and effects were also recorded by

the investigating agencies from time to time culminating in

the filing of a common chargesheet against 16 persons

accusing them of commission of several offences punishable

both under the Indian Penal Code, 1860 as also under the

provisions of the Cinematograph Act, 1952. What is

important is that while accused A-1, A-2, A-12, A-13 and A-

14 were charged with commission of offences punishable

under Sections 304A, 337, 338 read with Section 36, IPC

and Section 14 of the Cinematograph Act, 1952, accused A-3

to A-8 comprising the management and gatekeeper of the

Cinema were charged with commission of offences

punishable under Sections 304, 337, 338 read with Section

36, IPC and Section 14 of the Cinematograph Act, 1952. The

employees of DVB namely Inspectors B.M. Satija (A-9), A.K.

Gera (A-10) and Senior Fitter, Bir Singh (A-11) were also

charged with the commission of offences punishable under

Sections 304, 337 and 338 read with Section 36 of the IPC.

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As regards the remaining three accused namely, N.D. Tiwari

(A-14), H.S. Panwar (A-15) and Surender Dutt (A-16), they

were charged with commission of offences punishable under

Sections 304A, 337, 338 read with Section 36 of IPC.

17.Since some of the offences with which the accused

persons were charged were triable by the Court of Sessions,

the case was committed for trial to Additional Sessions

Judge, New Delhi, who framed specific charges against Sushil

Ansal (A-1), Gopal Ansal (A-2) and the rest of the accused.

18.Sushil Ansal (A-1) and Gopal Ansal (A-2), who happen

to be brothers, were charged with offences punishable under

Sections 304A read with Section 36 and Sections 337 and

338 read with Section 36 IPC for their negligent acts of

omission and commission of allowing installation of the DVB

transformer, various structural and fire safety deviations in

the building in violation of various Rules and not facilitating

the escape of patrons which caused the death of 59 persons

and simple and grievous injuries to 100 others in the fire

incident mentioned above. They were also charged under

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Section 14 of the Cinematograph Act, 1952 for contravention

of the provisions of the Delhi Cinematograph Rules, 1953

(hereinafter referred to as ‘DCR, 1953’) and Delhi

Cinematograph Rules, 1981 (hereinafter referred to ‘DCR,

1981’).

19.Managers, R.M. Puri (A-3), since deceased, K.L.

Malhotra (A-4) since deceased, R.K. Sharma (A-5) since

deceased, N.S. Chopra (A-6), Ajit Choudhary (A-7), since

deceased and Manmohan Uniyal (A-8), gatekeeper were also

charged with commission of offences punishable under

Section 304 read with Section 36 of IPC since, despite being

present at the time of the fire incident, they failed to inform,

alert and facilitate the escape of the patrons from the

balcony during the fire while knowing fully well that their act

was likely to cause death or such bodily injuries as was likely

to cause death.

20.Similarly, B.M. Satija (A-9), A.K. Gera (A-10) and Bir

Singh (A-11) were charged with commission of offences

punishable under Section 304 read with Section 36 IPC in

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that they had not used the required crimping machine while

repairing the DVB transformer after the first fire incident on

13

th

June, 1997 knowing fully well that this could and did

cause the transformer to catch fire once again and result in

the death or bodily injury as was likely to cause death of

persons in the building.

21.The rest of the accused persons namely, S.N. Dandona

(A-12) since deceased, S.S. Sharma (A-13), N.D. Tiwari (A-

14), H.S. Panwar (A-15) and Surender Dutt (A-16) since

deceased, were charged with offences punishable under

Sections 304A, 337 and 338 IPC read with Section 36 IPC for

causing the death of 59 persons and simple and grievous

injuries to 100 others by their acts and omissions of

negligently issuing No Objection Certificates to Uphaar

Cinema without ensuring that the statutory requirements for

fire safety and means of escape were adhered to.

22.All the accused persons pleaded not guilty to the

charges framed against them and claimed a trial. Not only

that, all of them filed writ petitions before the Delhi High

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Court against the order framing charges passed by the Trial

Court which were dismissed by the High Court in terms of

four separate orders passed by it. A Special Leave Petition

filed against the order of dismissal of the writ petition by

Sushil Ansal (A-1) was dismissed as withdrawn by an order

of this Court dated 12

th

April, 2002.

Evidence at the Trial :

23.At the trial the prosecution examined as many as 115

witnesses in support of its case apart from placing reliance

upon nearly 893 documents marked in the course of the

proceedings. The oral evidence adduced broadly comprised

depositions of witnesses whom providence helped to escape

alive from the cinema complex on the fateful day. These

witnesses narrated the events inside the cinema hall and the

confusion that prevailed after people started suffocating

because of smoke entering from in front of the screen and

through the AC ducts before the hall was eventually plunged

into darkness, leaving the people inside trapped without any

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emergency lights or help coming from any quarter. Those in

the balcony found that they could not escape since all the

doors were locked. The depositions comprising Kanwaljeet

Kaur (PW-1), Karan Kumar (PW-3), Rishi Arora (PW-7), Amit

(PW-8), Hans Raj (PW-11) and Satpal Singh (PW-12) gave

graphic accounts of the situation that prevailed inside the

cinema hall and the rescue operations after the Fire Brigade

arrived to help them out.

24.The evidence also comprised the depositions of Neelam

Krishnamoorthy (PW-4), Ajay Mehra (PW-5), Harish Dang

(PW-6), Satish Khanna (PW-9), Kishan Kumar Kohli (PW-10),

Raman Singh Sidhu (PW-13) and Surjit Singh (PW-66)

relatives of some of the victims, who narrated their travails

and proved the death certificates of those lost in the tragedy.

Neelam Krishnamoorthy (PW-4) happens to be the

unfortunate mother of two who were seated in the rightmost

two seats in the front row of the balcony.

25.Some of the onlookers and others who helped in the

rescue operations were also examined by the prosecution

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apart from the officers of the Delhi Fire Service. R.C. Sharma

(PW-49) Chief Fire Officer, testified to the presence of smoke

in the stairwell and the balcony and stated that he could not

open the balcony door until he received help of two other

officers. Depositions of B.L. Jindal (PW-15) and Ram Kumar

Gupta (PW-17) who happened to be the Assistant Engineer

and Junior Engineer respectively of the MCD were also

recorded. A large number of 14 witnesses were examined to

prove the structural deviations in the building upon an

inspection conducted after the fire incident. An equally large

number of 33 witnesses were examined to prove documents

relied upon by the prosecution. Witnesses were also

examined to prove the sanction orders issued by the

competent authority to prosecute some of the accused who

happened to be public servants. Evidence regarding the

ownership, management and administration of the company

which owned Uphaar Cinema, M/s Green Park Theaters

Associated (P) Ltd. was also adduced.

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26.Medical evidence led at the trial comprised the

deposition of Dr. T.D. Dogra (PW-62) who proved the death

certificates of 41 victims in which the cause of death was

stated to be suffocation. In addition, Dr. S. Satyanarayan

(PW-77) who conducted the post-mortem on the dead body

of Captain M.S. Bhinder was also recorded. Officials from

DVB and those connected with the investigation too were

examined by the prosecution before closing its case.

Findings of the Trial Court:

27.The Trial Court appraised the evidence led at the trial

including the depositions of three defence witnesses, one

each, examined by H.S. Panwar (A-15), Bir Singh (A-11) and

A.K. Gera (A-10) and recorded findings and conclusions that

may be summarized as under:

(a)That Uphaar Cinema was owned by a company

that was closely held by Sushil Ansal (A-1) and Gopal

Ansal (A-2) and other members of their family and

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that several violations regarding the installation of a

transformer and the seating arrangement in the

balcony, structural deviations in the building were

committed while Sushil Ansal (A-1) and Gopal Ansal

(A-2) were either Directors or the Managing Directors

of the said company. Even after the alleged

resignation of the Ansal brothers in the year 1988

they continued to be in control of the management of

the cinema and the running of its day-to-day affairs,

including exercising control over the Managers and

other staff employed.

(1)In coming to that conclusion, the Trial Court relied

upon both documentary and oral evidence adduced

before it by the prosecution. The Trial Court found that

application dated 2

nd

February, 1973 made to the

erstwhile DESU for grant of electricity connection for

Uphaar Cinema was signed by Sushil Ansal (A-1). So

also letter dated 2

nd

February, 1973 by which the

company had agreed to give DESU two rooms for their

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transformer and HT and LT panels at a nominal rent of

Rs.11/- per year was signed by Sushil Ansal (A-1). The

fact that the original licence granted to Uphaar Cinema

was granted in favour of M/s Green Park Theatres

Associated (P) Ltd. (in short, “GPT”) through Sushil

Ansal (A-1) as the Managing Director at that time, as

also the fact that Sushil Ansal (A-1) continued to be

representative licensee for the cinema was also relied

upon by the Trial Court in support of its conclusion that

Sushil Ansal (A-1) exercised control and management

over Uphaar Cinema at the relevant point of time.

Reliance was also placed by the Trial Court upon letter

dated 19

th

June, 1974 written on behalf of GPT by Sushil

Ansal (A-1) whereby the Entertainment Officer was

requested to permit the owner to lease out the top floor

of Uphaar Cinema for office use and the ground floor for

commercial establishments. An affidavit dated 21

st

March, 1975 and letter dated 2

nd

April, 1979 filed in

connection with renewal of the cinema license were also

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relied upon by the Trial Court to show that Sushil Ansal

(A-1) was not only the licensee of Uphaar Cinema, but

also that he had held himself out in that capacity before

the concerned authorities. Letter of authority

authorizing V.K. Bedi, Architect, to deal, discuss, explain

and make corrections in the building plan as well as to

collect the sanction plan on his behalf as also reply to

show-cause notice dated 11

th

May, 1981 issued by the

Deputy Commissioner of Police (Licensing) [in short,

“DCP (L)”] which too was sent by Sushil Ansal (A-1) as

licensee for GPT were relied upon by the Trial Court to

buttress its conclusion that Sushil Ansal (A-1) was the

person exercising control over the affairs of the cinema

and its Managing Director.

(2)The Trial Court noted that although Sushil Ansal

(A-1) had resigned from the Directorship of the

company on 17

th

October, 1988, he had continued to be

the licensee of the cinema as is evident from an

affidavit dated 3

rd

March, 1992 (Ex. PW50/B) addressed

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to DCP (L) seeking renewal of the license for the years

1992-93. In the said affidavit the Trial Court observed

that Sushil Ansal (A-1) clearly mentioned that he

continued to be the occupier of the licensed premises

and the owner of the Cinematograph. Minutes of the

meeting of the Board of Directors held on 24

th

December, 1994 were also noticed by the Trial Court to

show that although Sushil Ansal (A-1) resigned from the

Directorship of the company in 1988 he had continued

to be involved in the affairs of the cinema, no matter in

the capacity of a Special Invitee. Reliance was also

placed by the Trial Court upon the inspection proformas

of the Delhi Fire Service for the years 1995-1997 to

show that Sushil Ansal (A-1) continued to be shown as

licensee of Uphaar Cinema.

(3)The Trial Court placed reliance upon the financial

authority and the control exercised by Sushil Ansal (A-

1) in the affairs of the cinema hall. In this regard the

Trial Court referred to a self-cheque (Ex.PW91/B) dated

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26

th

June, 1995 for a sum of rupees fifty lakhs drawn by

Sushil Ansal (A-1) from the accounts of GPT. Closer to

the date of occurrence, the Board of Directors of the

company had on 25

th

March, 1996 passed a resolution

authorising Sushil Ansal (A-1) to operate the bank

accounts of the company upto any amount. The Trial

Court also relied upon other circumstances to support

its conclusion that although Sushil Ansal (A-1) claims to

have resigned from the Directorship of the company in

the year 1988, he continued to be the heart and soul of

the company and in complete management of the

cinema affairs. Reliance was also placed upon Ex.

PW103/XX3 by which Sushil Ansal (A-1) was appointed

authorized signatory to operate the Current Accounts

with various banks.

(4)The Trial Court similarly referred to and relied

upon several pieces of documentary evidence in holding

that Gopal Ansal (A-2) also exercised extensive control

over the affairs of the cinema. The Court, in particular,

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relied upon the resolution of the Board of Directors

passed on 15

th

July, 1972 (Ex.PW103/XX) according to

which Gopal Ansal (A-2) was authorised to sign all

documents, drawings and other connected papers

regarding the submission of revised plans, applications

for electricity connections concerning Uphaar Cinema,

etc. Letter dated 24

th

May, 1978 (Ex. PW110/AA20),

addressed by Gopal Ansal (A-2) as Director, GPT

seeking permission to install an eight-seater box and

reply dated 6

th

December, 1979 to the show-cause

notice for removal of one hundred extra seats after

withdrawal of the 1979 resolution which was signed by

Gopal Ansal (A-2) as Director of GPT were also relied

upon by the Trial Court. Similarly, letter dated 29

th

July,

1980 addressed to DCP(L) for the installation of fifteen

additional seats in the balcony was found to have been

written by Gopal Ansal (A-2) as Director, GPT. Reply to

the show-cause notice dated 28

th

May, 1982 was

similarly found to have been given by Gopal Ansal (A-2)

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as Director of GPT in which he tried to explain the

reasons for the bolting of doors from the inside during

exhibition of a film and gave assurance that the utmost

precaution would be taken by the management in

future. The Trial Court also relied upon the fact that the

car parking contract was granted by Gopal Ansal (A-2)

as Director of GPT in April, 1988.

(5)The Trial Court further relied upon the Minutes of

the Meeting held on 25

th

March, 1996 of the Board of

Directors of the company appointing Gopal Ansal (A-2)

as authorised signatory upto any amount to operate the

bank accounts. Cheques issued by Gopal Ansal (A-2)

subsequent to the said authorisation in favour of the

Chief Engineer (Water) and in favour of the Music Shop

from the accounts of GPT which later was rechristened

as Ansal Theaters & Clubotels (P) Ltd. were also relied

upon by the Trial Court in support of its conclusion that

Gopal Ansal (A-2), like his brother Sushil Ansal (A-1),

even after resigning from the Directorship of the

Page 29 29

company, continued to exercise control over the affairs

of the cinema complex. This was, according to the Trial

Court, evident from the fact that Gopal Ansal (A-2) was

appointed authorised signatory to operate the current

accounts, as was the case for Sushil Ansal (A-1) also.

(6)Last but not the least, the Trial Court relied upon

the Minutes of the Meeting dated 27

th

February, 1997

(Ex. PW98/X4) in which Gopal Ansal (A-2), described as

“MD” of the company, is said to have desired that not

even a nail be put in the cinema premises without his

prior permission. Similarly, in the Minutes of the MD

Conferences dated 2

nd

April, 1997 and 1

st

May, 1997,

Gopal Ansal (A-2), described as “MD in Chair”, issued

instructions in this capacity regarding a large number of

business decisions and day-to-day affairs of the

company. The Trial Court held that Gopal Ansal (A-2)

was proved to be MD in Chair by letters marked (Ex.

PW98/X-2) and (Ex. PW98/X-3). He was also shown to

be “MD in Chair” for the MD Conference held on 7

th

May,

Page 30 30

1997 in terms of letter dated 9

th

May, 1997 marked Ex.

PW98/X-C.

(b)That a 750 KVA DVB transformer was installed in

the cinema premises in complete violation of the

Electricity Rules and in breach of the sanctioned plan

for the building.

(1)The Trial Court found that the sanctioned plan

marked Ex. PW15 Y/3 provided for three adjacent

rooms on the ground floor each measuring 20x10 feet

to be used for installation of a transformer. The first of

these three rooms was to be used for HT cables that

would bring high voltage current from the AIIMS Grid

Station. The second room was to be used for installing

the transformer that would step down the high density

current and transmit the same to the third room which

was meant for LT cables from where the current would

then be supplied to the cinema building.

(2)Relying upon the report submitted by Mr. K.L.

Grover (PW-24), the Electrical Inspector, the Trial Court

Page 31 31

concluded that it was essential for the management of

the cinema to obtain permission from the Licensing

Department as also from the Municipal Corporation of

Delhi (in short, “MCD”) prior to the installation of the

said transformer. Instead of doing so, the internal

positioning of the walls of the transformer area

comprising the three rooms mentioned above was

changed without so much as notifying the MCD about

the said change or obtaining its sanction for the same.

Reliance was, in this regard, placed by the Trial Court

upon the depositions of R.N. Gupta, Executive Engineer,

MCD (PW-2) and Shri K.L. Grover, Electrical Inspector

(PW-24).

(3)The Trial Court also looked into the Rules

regarding installation of transformers in the Bureau of

Indian Standard: 10028 (Part II) - 1981 and the

Building Bye Laws, 1983 to hold that the installation of

the transformer in question did not adhere to the

following three distinct requirements under the rules:

Page 32 32

(i)The two transformers namely one installed by

the management of the company owning the

cinema and the other installed by the DVB

were not separated by a fire resistant wall as

required in Para 3.6.2, IS: 10028 (Part II) –

1981.

(ii)The transformers did not have oil soak pits

necessary for soaking the entire oil content in

the transformers as required in Paras 3.6.3

and 3.6.4, IS: 10028 (Part II) - 1981.

(iii)The rooms where the transformers were kept

did not have proper ventilation and free

movement of air on all four sides of the

transformers, nor were adequately sized air

inlets and outlets provided to ensure efficient

cooling of the transformers as required in

Paras 7.3.1.1 and 7.3.1.4, IS: 10028 (Part II)

– 1981.

(4)Having said so, the Trial Court rejected the

Page 33 33

contention urged on behalf of the Ansal brothers (A-1

and A-2) that they were coerced into providing space

for the DVB transformer by the DVB authorities. The

Court found that correspondence exchanged between

GPT and the DVB authorities did not suggest that the

Ansals were forced to provide space for the DVB

transformer as contended by them.

(c)That the condition of the DVB transformer was

wholly unsatisfactory and that the fire had started on

account of the sparking of the loose connection of the

cable and socket of the bar of the said transformer.

(1)Relying upon the depositions of K.L. Grover, the

Electrical Inspector (PW-24), T.P. Sharma, CBRI Expert

(PW-25), K.V. Singh, Executive Engineer (Electrical),

PWD (PW-35), Professor M.L. Kothari from IIT (PW-36)

and Dr. Rajinder Singh, Sr. Scientific Officer, CFSL,

(PW-64), as well as their respective inspection reports,

marked Ex. PW24/A, Ex. PW25/A, Ex. PW35/A, Ex.

Page 34 34

PW36/A and Ex. PW64/B, the Court held that the

condition of the DVB transformer was wholly

unsatisfactory on account of the following:

(i)The transformer did not have any protection

system as required by the Electricity Act.

(ii)The terminals on the LT side were not enclosed in

a box, unlike in the case of the Uphaar

transformer.

(iii)The LT side cables from the bus bar lacked any

kind of clamping system or support for the

cables.

(iv)There was no relay system connected to the HT

Panel board of the DVB transformer which could

have tripped in case of any fault.

(v)The check nut of the neutral terminal was found to

be loose.

(vi)There were earth strips lying in the transformer

room but these were not properly joined.

(vii)The connection between earth and neutral was

Page 35 35

also broken.

(viii)The LT Panel’s outgoing switches did not have

fuses.

(ix)No HRC (High Rupture Capacity) fuses were found

and use of wires, in lieu of it was not proper.

(x)All the four oil circuit breakers were completely

unprotected against earth faults and over

current.

(xi)The potential transformer was found to be in the

disconnected condition of the OCB operation

mechanism. Its battery and charger were also

found to be defective and heavily damaged in

the fire.

(2)The Court further held that fire in the DVB

transformer had resulted on account of the sparking by

the loose connection of the cable end socket of the bus

bar of the DVB transformer. The cable end socket of the

B-phase bus bar was unsatisfactorily repaired since it

was fixed by hammering and not by using a crimping

Page 36 36

machine. The LT cable got disconnected from the cables

on the B-phase and made a hole in the radiator fin

when the live conductor of the disconnected cable fell

upon it. Transformer oil gushed out of the opening on

to the floor, while continued short circuiting of the cable

with the radiator fin in the absence of a protection relay

system caused sparking, which in turn resulted in the oil

from the transformer catching fire. The sparking would

have continued for a significant amount of time since

there was no immediate tripping system available in the

HT panel. Tripping was ultimately found to have taken

place at the 33 KV sub-station at AIIMS. The main

switch from the generator which was going to the AC

blower was found to be fused. The fuses were found to

be inside the body of the switch. The condition of dust

covered fuses suggested that they had been out of use

for a long time.

(d)That the parking of extra cars and the parking of

cars close to the transformer in what was meant to be

Page 37 37

a 16 ft. wide passage for free movement of the

vehicles aggravated the situation and contributed to

the incident. The Trial Court found that apart from

petrol and diesel cars, CNG gas cylinders and

upholstery comprising combustible material emitted

smoke when burnt containing carbon monoxide,

carbon dioxide and other hydrocarbons which resulted

in suffocation of those inside the balcony of the

cinema.

(1)The Trial Court held that the management of the

cinema had disregarded the requirements of law and

the sanctioned plan, thereby putting the lives of the

patrons at risk. The Court found that there was nothing

on record to show that the Ansal brothers (A-1 and A-2)

or the Managers of the cinema for that matter had

impressed upon the contractor appointed by them the

legal and safety requirements of maintaining a safe

distance between vehicles and the transformer room

when they entered into a parking contract in the year

Page 38 38

1988. This, according to the Court, was gross

negligence that contributed to the death of a large

number of patrons and injuries to many more. The Trial

Court in support of that conclusion relied primarily upon

the following pieces of evidence:

(i)The sanctioned plan for the ground/stilt floor of the

Uphaar Cinema building as also the report of

R.N. Gupta, Executive Engineer, MCD (PW-2),

according to which the provision for parking of

fifteen cars was made on the said floor. The plan

also earmarked a 16 feet wide passage to be

maintained alongside the transformer rooms for

the easy maneuvering of vehicles.

(ii)The deposition of R.K. Sethi (PW-56), the parking

contractor, proved that cars were parked at a

distance of no more than 3-4 feet from the

transformer room. On the fateful day parking

tokens had been issued for 18 cars for the matinee

Page 39 39

show, apart from 8-10 office cars that were parked

in the parking lot.

(iii)The deposition of K.V. Singh, Executive Engineer

(Electrical), PWD (PW-35) and the report marked

Ex.PW35/A which proved that the fire situation had

been aggravated due to the presence of petrol and

diesel in the fuel tanks of the vehicles parked in

front of the transformer rooms.

(iv)Local Inspection Note of the place of incident

prepared by the Trial Court which supported the

conclusion that cars had been parked in close

proximity to the transformer room and that the

same were burnt in the incident.

(2)Absence of proper care on the part of the

management in ensuring that only the permissible

number of vehicles were parked in the parking area and

that a 16 ft. wide passage remained free from any

obstruction were held by the Trial Court to be acts of

Page 40 40

gross negligence on the part of the management,

endangering the lives of the patrons visiting the cinema

and contributing to the magnitude of the hazardous

gases that eventually led to the death of a large

number of innocent victims.

(e)That there were several structural deviations in

the cinema building apart from a rear wall behind the

HT/LT room that was found to be constructed up to a

height of 12 feet even though it was sanctioned only

up to a height of 3 feet.

(1)Relying upon the deposition of B.S. Randhawa,

ASW, PWD (PW-29) and Ex. PW29/A, the

panchnama/report of floor-wise deviations prepared by

him along with Dalip Singh, Executive Engineer, PWD

and Prithvi Singh, DSP, the Court held that the

construction of the rear wall beyond 3 feet had affected

the ventilation in the area and obstructed the dispersal

of smoke in the atmosphere. The Court rejected the

contention that PW-29 had been tutored since he had

Page 41 41

made no mention of the obstruction of smoke in the

report, Ex. PW29/A. The Court found that his testimony

had been corroborated by the sanctioned plan Ex.

PW15/Y-3, which too only allowed a wall upto a height

of 3 feet.

(2)Similarly, the Court found certain other structural

deviations in the cinema building some of which

contributed to the fire, smoke and obstruction of escape

claiming human lives by asphyxia. The Court in this

regard placed reliance upon Ex. PW17/D, the report

prepared by R.K. Gupta, Junior Engineer, MCD (PW-17)

and the deposition of R.S. Sharma (PW-18) and Vinod

Sharma (PW-20). The Court also placed reliance upon

Ex. PW2/A which happened to be the inspection-cum-

scrutiny report dated 2

nd

August, 1997 submitted by the

MCD Engineers depicting floor-wise deviations and

deposition of R.N. Gupta, Executive Engineer, MCD

(PW-2) in that regard. Reliance was also placed upon

the depositions of R.K. Bhattacharaya (PW-39) and the

Page 42 42

inspection note prepared by the Trial Court based on its

inspection on the spot as per the direction of the High

Court. Based on the said evidence the Trial Court

enumerated the following structural deviations in the

Uphaar Cinema building:

Basement

(i)A 12' X 20' room was constructed adjoining the

staircase.

(ii)A 26' X 20' room was constructed adjoining the

blower room.

(iii)A wooden store with wooden partitions was being

used.

(iv)One 40' long and one 20' long brick wall were

constructed and old seats were found partially filling the

space between them.

Ground Floor/Stilt Floor

(i)A 20' X 9' Homeopathy Dispensary was

constructed above the ramp, behind the

transformer room.

Page 43 43

(ii)Behind the HT, LT and transformer rooms, the

outer wall was built up from a height of 3' to the

height of the first floor.

(iii)Though externally unchanged, the partitions

between the HT, LT and transformer rooms were

shifted to alter the rooms' internal sizes.

(iv)A 14' X 7' room adjoining the HT room was being

used as a ticket counter.

(v)A 20' X 20' ticket foyer was converted into

Syndicate Bank. Sanjay Press Office was found in

place of the restaurant on the front side.

(vi)A mezzanine floor was constructed using R.S.

Joists of timber, at a height of 8' above the stilt

floor, to be used as offices. This was completely

burnt in the fire.

(vii)A small construction was made using RCC slabs on

the mid landing of the staircase at a height of 8'

above the stilt floor to be used as offices.

(viii)M/s Sehgal Carpets was occupying a partition of

Page 44 44

the staircase leading to the basement around the

lift well.

Foyer/First Floor

(i)A refreshment counter was found constructed

between the expansion joint and the staircase.

(ii)A second refreshment counter was constructed

near the rear exit gate, 10'9'' away from the auditorium

exit gate.

Mezzanine Floor/Balcony

(i)A refreshment counter covering 21' X 9' was found

between the doors of the toilet and the staircase.

(ii)An office room was constructed in place of the

sweeper room and adjoining toilets.

(iii)The operator room was converted into an office-

cum-bar room.

(iv)A door of full width on the right side of the

staircase landing between the Projection Room floor and

the loft floor was found to be obstructing the path to the

terrace.

Page 45 45

(v)Sarin Associates' reception counter was found in

the staircase leading to the terrace, thereby obstructing

the passage way.

Top Floor

(i)A large hall at the loft level was converted into office

cabins with wooden partitions and the same

appeared to be occupied by Sarin Associates,

Supreme Builders, Supreme Promoters,

Supreme Marketing (P) Ltd. And Vikky Arin

Impex (P) Ltd.

(ii)The staircase above the loft level was converted into

an office.

(f) That, apart from structural deviations referred to

above, the seating arrangement within the balcony

area of the cinema was itself in breach of the

mandatory requirements of the DCR, 1953 and DCR,

1981.

(1)Relying upon the Completion Certificate Ex.

PW17/DA, dated 10

th

April, 1973, the Trial Court held

Page 46 46

that the number of seats originally sanctioned for the

balcony was limited to 250 seats (two hundred and fifty

seats). The Court also noticed that the first seating plan

Ex. PW95/B1 was in conformity with the DCR, 1953 and

provided a total of three exits, one each on the two

sides of the balcony and the third in the middle.

Gangways leading to these exits were also found to be

in conformity with the statutory requirements which

prescribed a width of 44 inches for the same. In the

year 1974, however, Sushil Ansal (A-1) made a request

for installation of 14 seats in what was originally

sanctioned by the MCD to be an Inspection Room,

pursuant whereto the Inspection Room was converted

into a 14-seater box with the permission of the licensing

authority. Two years later, a development of some

significance took place inasmuch as by a Notification

dated 30

th

September, 1976 issued by the Lt. Governor

of Delhi, Uphaar Cinema permitted addition of 100 more

seats to its existing capacity. Forty three of the said

Page 47 47

additional seats were meant to be provided in the

balcony by using the vertical gangways to the right of

the middle entry/exit of the cinema in the right wing of

the balcony. The remaining 57 seats were meant for

addition in the main auditorium of the cinema hall. The

addition of these seats was approved on 30

th

September, 1976 as per the seating plan marked Ex.

PW95/B-2.

(2)As per the above seating plan the vertical gangway

along the rightmost wall of the balcony was completely

utilized and blocked because of the installation of the

additional seats whereas the width of the gangway

along the right side of the middle entry/exit was

reduced to 22.5 inches, the remainder of the space

having been utilized for fixing 32 additional seats in that

area. The addition of 11 more seats to the row along

the back of the balcony (1 on the right, 8 in the middle

and 2 on the left side) made up for the remainder of the

43 additional seats permitted under the Notification.

Page 48 48

The Trial Court found that in order to compensate for

the blocking and narrowing of the gangways in the right

wing, the seating plan provided for a 44 inch wide

vertical gangway along the middle of the right wing of

the balcony. Inevitably, the altered seating

arrangement made it relatively more difficult for those

occupying the right wing of the balcony to reach the

exit.

(g)That an eight-seater family box was added in the

year 1978 upon an application moved by Gopal Ansal

(A-2), which had the effect of completely closing the

right side exit, access to which already stood

compromised on account of the additional seats.

(1)The above addition was made pursuant to a report

given by S.N. Dandona (A-12), since deceased, who at

the relevant time was posted as Executive Engineer,

PWD and who appears to have inspected the site on

27

th

June, 1978 on a reference made to him by the

Entertainment Tax Officer. What is significant is that the

Page 49 49

Entertainment Tax Officer had by his letter dated 2

nd

September, 1978 asked S.N. Dandona (A-12) to

confirm his report pursuant to the inspection conducted

by him, drawing his attention to Clause 6 of the First

Schedule of DCR, 1953, which required that the total

number of spectators accommodated in the building

shall not exceed 20 per 100 sq. ft. of the area available

for sitting and standing, or 20 per 133.5 sq. ft. of the

overall area of the floor space in the auditorium. Mr.

Dandona (A-12) replied in terms of his letter dated 20

th

September, 1978 Ex. PW29/DN, that the installation of

the eight-seater box was in accordance with the

prevalent DCR, 1953.

(2)The Trial Court found fault with the installation of

the eight-seater box and held that even though

permission for installation of the box had been granted

to the Ansals (A-1 and A-2), the same continued to be

in clear violation of Para 10(4) of the First Schedule to

DCR, 1953 which in no uncertain terms stipulated that

Page 50 50

exits from the auditorium shall be placed suitably along

both sides and along the back thereof.

(h)That to compensate for blocking of the exit on the

right of the eight-seater box, an exit was provided

along the back on the left side. This addition of an

exit on the left side of the balcony did not satisfy the

stipulation under Para 10(4) of the First Schedule of

DCR, 1953.

(1)The object underlying para 10(4) of the First

Schedule of DCR, 1953, observed the Trial Court, was

to ensure rapid dispersal in both directions through

independent stairways leading outside the building. This

necessarily meant that addition of the left side exit did

not amount to substantial compliance with the DCR,

1953, declared the Court.

(i)That addition of seats and closure of the right

side gangway were in violation of the statutory

Page 51 51

provisions and severely compromised the need for

quick dispersal in the event of an emergency.

(1)A further development and another dimension to

the seating arrangement in the balcony came in the

form of a Notification dated 27

th

July, 1979, from the Lt.

Governor whereunder the relaxation in the number of

seats provided to Uphaar Cinema under the 1976

Notification was withdrawn. The withdrawal, it appears,

came as a consequence of a judgment delivered by the

High Court of Delhi in a writ petition filed by the cinema

owners challenging the State’s power to fix the price of

admission tickets to the theatre. The power to fix

admission rates to the cinema having thus been taken

away, the Lt. Governor appears to have withdrawn the

relaxation in the number of additional seats allowed to

the cinema owners under the 1976 Notification. This

withdrawal was not acceptable to the Ansals (A-1 and

A-2) along with others who challenged the same before

the High Court of Delhi and obtained interim directions

Page 52 52

in their favour. The High Court directed that such of

the additional seats as comply substantially with the

requirements of the Rules may be allowed to stay while

others which infringed the Rules may have to be

removed. A show-cause notice was accordingly issued

to Uphaar Cinema asking it to remove all the 100

additional seats, which according to the licensing

authority were non-compliant with the requirement of

the relevant Rules. Gopal Ansal (A-2) opposed the

removal of these seats in the reply filed by him as

Director of GPT Pvt. Ltd. stating that all the additional

seats installed by them were compliant with the

Cinematograph Rules and requested the authorities to

apply their minds to the direction of the High Court

regarding substantial compliance with the Rules.

(2)A fresh process of inspection of the Cinema was

therefore started, pursuant to the direction of the High

Court and the show-cause notice. This inspection was

conducted by Mr. Amod Kanth, DCP (L), S.N. Dandona,

Page 53 53

Executive Engineer, MCD (A-12) and the Chief Fire

Officer and Executive Engineer, all of whom had

submitted a joint report Ex.PW29/DR. The report, inter

alia, stated that 37 of the 43 additional seats in the

balcony were substantially compliant with the Rules

while 6 additional seats on the right side of the balcony

were in gross contravention of Paras 7(1) and 8(1) of

the First Schedule to DCR, 1953 as they were blocking

vertical gangways and causing obstruction to free

egress of patrons from the balcony. The said 6 seats

were, therefore, required to be removed and the

original number of vertical gangways restored. The

result was that 37 additional seats were allowed out of

43 to stay in the balcony in terms of order dated 24

th

December, 1979 marked Ex. PW29/DR passed by Mr.

Amod Kanth, DCP (L).

(3)In his letter dated 29

th

July, 1980, Gopal Ansal (A-

2), Director of GPT wrote a letter Ex. PW110/AA7 to the

DCP(L) for installation of 15 additional seats in the

Page 54 54

balcony. Pursuant to the said letter, the DCP (L) wrote a

letter dated 20

th

August, 1980 (Ex. PW29/DS) to the

Executive Engineer, requesting him to verify whether

the proposed installation of 15 seats would be compliant

with the relevant provisions of the DCR, 1953 and to

submit a detailed report regarding the same. In his

reply dated 3

rd

September, 1980, Executive Engineer,

S.N. Dandona (A-12) stated that the proposed

installation of seats was not in accordance with the

scheme of the DCR, 1953. Gopal Ansal (A-2), therefore,

submitted a revised plan for the proposed additional

seats vide letter dated 5

th

September, 1980 (Ex.

PW29/DV). In his report Ex. PW29/DX dated 10

th

September, 1980 S.N. Dandona (A-12) stated that the

additional 15 seats would be in conformity with DCR,

1953, but raised a concern that the installation of the

15 additional seats would bring the total number of

seats in the balcony to 302 while the total number of

exits would remain 3 in number. As per the First

Page 55 55

Schedule of the DCR, 1953, the number of exits should

be 1 per 100 seats. This would imply that 2 additional

seats in the balcony would be in excess, unless a fourth

exit was to be provided. Having said that, S.N. Dandona

(A-12) excused this excess on the grounds that it was

decided in a meeting held in October, 1979 in which the

DCP(L) and Chief Fire Officer were present that, keeping

in view the High Court's orders for substantial

compliance, an excess of 1% in the number of seats

over the required number of exits should be allowed.

Pursuant to S.N. Dandona's report, the DCP(L), Amod

Kanth allowed the installation of the 15 additional seats

in the balcony on 4

th

October, 1980. The result was that

15 additional seats were installed as per the seating

plan marked Ex. PW95/B4. The Trial Court further found

that DCP(L), Amod Kanth, S.N. Dandona (A-12), Chief

Fire Officer and Executive Engineer were equally

responsible for not noticing the closure of the right side

exit.

Page 56 56

(4)The Trial Court found that the addition of seats as

also closure of the right side exit because of installation

of the family box in that area, in the process blocking

one vertical gangway, narrowing of another and partial

blocking of the third (new) exit on the left side of the

balcony were all in violation of the statutory provisions

and severely compromised the safety of the patrons

visiting the cinema. The Trial Court also held that

because of the alterations in the seating plan on

account of the addition of seats and blocking of the right

side exit, rapid dispersal of the patrons in the event of

an emergency was seriously jeopardized, which

amounted to gross negligence on the part of the owners

and management of Uphaar Cinema, as well as those

who were responsible for sanctioning the changes.

(5)The Trial Court, in fact, went a step further and

ordered further investigation of the offence under

Section 173(8) of the CrPC vis-a-vis the persons left out

by the CBI, particularly the DCP(L), Amod Kanth against

Page 57 57

whom the Association of Victims of Uphaar Tragedy had

filed an application under Section 319 of the CrPC. The

Trial Court held that the balcony seating plans showed

that the authorities responsible for the enforcement of

the Rules as well as their subordinates who were to

carry out inspections were in connivance with the

proprietors of the cinema, Sushil and Gopal Ansal (A-1

and A-2) who acted in connivance with each other with

a view to making an unlawful gain at the cost of the

public.

(j)That the owners of Uphaar Cinema who carried

out the structural deviations, the officers of the MCD

who granted 'No Objection’ certificates for running the

cinema hall for the years 1995-96 and 1996-97

respectively despite the structural deviations existing

in the cinema building and the managers of Uphaar

Cinema who turned a blind eye to the said deviations

and the threat to public safety caused by them, were

the direct cause of death of 59 persons and 100

Page 58 58

injured in the cinema hall. The act of the gatekeeper

in fleeing from the cinema hall without unbolting the

door of balcony was also found to be a direct cause of

the death of persons inside the balcony.

(1)As regards the unfolding of events in the balcony

after the smoke began to spread inside, the Trial Court

relied upon the depositions of patrons seated in the

balcony, PWs 1, 3, 7, 8, 11 & 12 who were fortunate to

survive the ordeal, but all of whom had lost in the

tragedy some of their relatives who accompanied them

to the movie. The Trial Court also relied upon the

depositions of relatives of deceased patrons from the

balcony, examined as PWs 4, 5, 6, 9, 10, 13 & 66, who

were not among those in the cinema hall themselves

but who had rushed to the scene upon learning about

the disaster. The deposition of the complainant Security

Guard, Sudhir Kumar (PW63) who first noticed the fire

and helped in rescue operations was also relied upon.

Page 59 59

Relying upon the above evidence, the Trial Court

arrived at the following conclusions:

(i)Since the patrons were trapped inside the balcony

which was engulfed by the smoke, those who

succumbed died due to inhalation of smoke.

(ii)The patrons seated in the balcony were unable to

save themselves in time since there were no

proper means of escape.

(iii)Though four exits were statutorily required in the

balcony, only three were provided.

(iv)As previously held, the alterations made to the

balcony by the owners of Uphaar Cinema in

contravention of legal provisions became a

hindrance to egress into the open air for patrons

in the balcony, as a result of which the said

patrons could not save themselves in time.

(v)Three exit doors were bolted. After becoming

aware of the fire in the building, the gatekeeper,

Manmohan Uniyal (A-8) fled the scene without

Page 60 60

unbolting the exit doors.

(vi)Since the doors had been bolted, one of the doors

had to be pushed open by the trapped patrons

in order to come out into open space. This

endeavour took 10-15 minutes, which resulted

in a sufficient amount of exposure to the toxic

gases to cause the death of the persons inhaling

the same.

(vii)Moreover, since descending the staircase would

only take the patrons into denser smoke, people

attempted to climb upwards towards the

terrace. However, their path was obstructed due

to the unauthorised construction of the

commercial office of M/s Sareen Associates on

the landing of the staircase on the top floor,

which created a bottleneck and facilitated in

causing the death of more patrons. Moreover,

one of the structural deviations previously noted

by the Trial Court was the presence of a full

Page 61 61

width door on the right side of the stair case

landing on the top floor, which created an

obstruction for going to the terrace.

(viii)It is revealed from the inspection reports that the

four exhaust fans which were to face an open

space instead opened out into the staircase.

(ix)As previously held, the existing structural

deviations in the building obstructed the egress

of patrons into open spaces and thereby directly

contributed to their deaths. These blatant

structural deviations were never objected to by

the MCD, a government body which is

responsible for ensuring compliance with

building plans.

(x)The eye-witnesses have unanimously deposed that

once they realized that smoke was entering the

hall and a hue and cry was raised, no one from

the management of the cinema theatre was

there to help them escape. Instead, the

Page 62 62

managers fled the scene without thought for the

patrons.

(xi)There were no fire alarms or emergency lighting,

nor was any public announcement made to warn

the patrons of the fire.

(xii)As per the deposition of the Projector Operator,

Madhukar Bagde (PW85), an announcement

system was present in the Projector Room but

the same was out of order. He deposed that he

had previously informed K.L. Malhotra (A-4),

since deceased, to have the same rectified. This

fact was also verified in the report of PW64, Dr.

Rajinder Singh.

(xiii)The managers being directly responsible for the

daily functioning of the cinema failed in their

duty to ensure the safety of the patrons seated

inside. They grossly neglected their duties to

take measures to prevent fires and follow fire

safety regulations, which caused the death of

Page 63 63

patrons trapped inside.

(xiv)It is writ large that the failure of the owners and

management of Uphaar Cinema to adhere to

provisions relating to fire safety caused the

death/injury of those who had gone to view the

film in the cinema.

(xv)The factors which constituted the direct and

proximate cause of death of 59 persons and

injury of 100 persons in Uphaar cinema were

the installation of the DVB transformer in

violation of law, faulty repair of the DVB

transformer, presence of combustible material in

the cinema building, parking of cars near the

transformer room, alterations in the balcony

obstructing egress, structural deviations

resulting in closure of escape routes in the

building at the time of the incident, bolting of

the exit doors from outside and the absence of

fire fighting measures and two trained firemen,

Page 64 64

during the exhibition of the film in the cinema

building.

(k)That the cause of death of the 59 victims was

asphyxia caused by prolonged inhalation of smoke

consisting of carbon monoxide and other toxic gases.

(1)On the basis of the result of the post-mortem

examination on the dead body of Captain M.S. Bhinder,

the Trial Court held that all the victims died on account

of the very same cause as was found to be responsible

for the demise of Captain Bhinder. Reliance was also

placed by the Trial Court upon the reports submitted by

a Board of Medical Experts from AIIMS which proposed

that the death of 59 victims of asphyxia was caused due

to inhalation of smoke consisting of carbon monoxide

and other toxic gases. On the basis of the expert

opinion, the Court concluded that the cause of death of

the persons sitting in the balcony was due to inhalation

of smoke. The Court noted that the effect of gases is

Page 65 65

rapid as the fatal period for carbon monoxide with 10%

concentration is within 20-30 minutes while the fatal

period of hydrocyanic acid is 2-20 minutes. The

combustion of materials released such toxic compounds,

which in turn caused rapid death of the victims. The

Court also held that immediate well-organized intensive

rescue operations could have saved many lives.

28.In conclusion and on the basis of the findings recorded

by it, the Trial Court convicted Sushil Ansal (A-1) and Gopal

Ansal (A-2) for commission of the offences punishable under

Sections 304A, 337 and 338 read with Section 36 of IPC and

sentenced each one of them to undergo rigorous

imprisonment for a period of two years with a fine of

Rs.5,000/- and a default sentence of six months. They were

also convicted under Section 14 of the Cinematograph Act,

1952 and sentenced to pay a fine of Rs.1,000/- or undergo

two months imprisonment in default. 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

Page 66 66

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.5,000/- 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.5,000/- and a default

sentence of six months.

29.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.5,000/- and a default

Page 67 67

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) Cr.P.C. in regard to other persons including

Amod Kanth DCP(L) for allowing the cinema to function on

temporary permits and for not demanding the detailed

inspection reports before issuing such permits.

Findings of the High Court:

30.Aggrieved by the judgment and order passed against

them, all the 12 accused persons convicted by the Trial Court

preferred appeals before the Delhi High Court. The

Association of Victims of Uphaar Tragedy also filed a revision

petition challenging the judgment and order of the Trial

Court to the extent the same convicted the accused persons

only for offences punishable under Section 304A IPC instead

Page 68 68

of Section 304, Part II IPC. The High Court, as noticed in the

beginning of this order, disposed of the aforementioned

appeal by a common judgment dated 19

th

December, 2008

whereby the High Court affirmed the findings of fact recorded

by the Trial Court. We may at this stage briefly refer to the

said findings for the sake of clarity.

I Re: Ownership, Management and Control of

Uphaar Cinema:

(i) In para 9.68 of its judgment the High Court held that

the ownership, management and control of Uphaar Cinema

vested with the Ansal brothers (A-1 and A-2) at all material

times.

(ii)In para 9.62 of its judgment the High Court affirmed

the findings recorded by the Trial Court and held that Ansal

brothers (A-1 and A-2) were responsible for all major

decisions in regard to management and affairs of the Uphaar

Cinema such as:

Page 69 69

(a)The decision regarding installation of DVB

transformer within the cinema premises.

(b)The decision relating to re-arrangement of seating

plan in the balcony which was in violation of DCR, 1953

and DCR, 1981.

(c) The decision regarding closure of right side exit by

installation of eight-seater family box.

(d)The decision regarding placement of additional

seats in the balcony.

(e)The grant of contracts for use of parking space.

(f)The exercise of unlimited financial powers on

behalf of the company and the power to create

encumbrances and charges over its assets.

(g)The decision relating to commercial use of the

building.

(h)The decisions concerning day-to-day affairs of the

company.

Page 70 70

(iii)In paras 9.63 and 9.64 the High Court held that the

Ansals (A-1 and A-2) were not only the Directors of the

company but had continued to be involved in its day-to-day

functioning even after they ceased to be so.

(iv)The High Court further held that merely because the

letter dated 6

th

March, 1997 had presented R.M. Puri and

K.L. Malhotra (both since deceased) as authorised signatories

of the company for operating the cinema and for dealing with

the licensing authority did not mean that a specific

nomination in their favour was made in terms of Rule 10(2)

of DCR, 1953 or the corresponding provision under DCR,

1981. The High Court held that the shareholding pattern of

the company revealed that the major/predominant

shareholding continued to remain with the Ansal family and

at no point of time was any outsider shown to have held any

of the 5000 shares issued by the company.

(v)In para 9.67 of its judgment the High Court held that

from the deposition of those shown to be the Directors of the

company in the year 1996 to 1997, it is evident that even

Page 71 71

though they had attended certain meetings of the Board,

they were completely unaware of the vital aspects including

the fact that Uphaar Cinema was being run by Ansal

Theatres and Clubotels Pvt. Ltd. and whether they were in

fact Directors or empowered to act on behalf of the

company.

IIRe: DVB Transformer:

(i)In para 7.4 the High Court held that the DVB

transformer had been installed against the provision of the

Electricity Rules.

(ii)In paras 7.10 and 7.12 of its judgment the High Court

rejected the submission made on behalf of Sushil Ansal (A-1)

and Gopal Ansal (A-2) that they were coerced in providing

space for the DVB transformer.

(iii)In paras 7.94, 7.95 and 7.96 of its judgment the High

Court affirmed the findings recorded by the Trial Court that

the DVB transformer was in poor maintenance on the date of

the incident on account of the following:

Page 72 72

(A)Protection relays which could have tripped off the

DVB transformer were missing.

(B)The LT side cables from the bus bar did not have

clamping system or support to the cables.

(C)The earth cable was in a twisted condition; and

(D) The Buchholtz relay system was not fitted on the

transformer.

31.The High Court comprehensively dealt with the cause of

fire and affirmed the findings recorded by the Trial Court that

the fire had started from the DVB transformer on account of

the improper repair carried out on the same without use of a

crimping machine because of which the LT cable had got

disconnected on the B-phase and an opening was created on

the radiator fin when the live cable fell upon it and caused a

short circuit. The High Court summed up the cause of the fire

in paras 7.124 and 7.125 of its judgment.

32.The High Court held that the correspondence relating to

the installation of the DVB transformer did not suggest any

Page 73 73

element of threat or use of force or economic power on the

part of the DVB. On the contrary, the correspondence

revealed an anxiety on the part of cinema management to

start its operation. It also held in paras 7.10 and 7.11 of its

judgment that the Uphaar establishment was a beneficiary of

the DVB transformer since some parts of the building which

were let out to tenants of the establishment were receiving

electricity supply from the said transformer.

IIIRe: Car Parking:

33.In para 7.17 of its judgment the High Court affirmed

the findings recorded by the Trial Court that the parking of

extra cars and the parking of cars close to the transformer

room blocking the 16 ft. wide passage which was meant to

be kept free for the movement of vehicles, aggravated the

fire and contributed to the incident. The High Court held that

the owners and the management of Uphaar Cinema had

blatantly disregarded the requirements of law and the

sanctioned plan thereby putting the lives of its patrons at

risk. The High Court further held that Ansal brothers (A-1

Page 74 74

and A-2) or the Managers had not conveyed to the parking

contractor the legal and safety requirement of maintaining a

safe distance between the vehicles and the transformer room

while entering into a parking contract in the year 1988 nor

was the parking arrangement subject to any kind of check.

The outsourcing of the car parking did not, observed the

High Court, absolve the cinema management which was the

occupier and owner of the premises of their duty to ensure

that vehicles parked immediately below the viewing area

were maintained keeping all safety standards in mind.

IVRe: Structural Deviations:

34.In paras 7.39 to 7.60 of its judgment the High Court

affirmed the findings recorded by the Trial Court that several

structural deviations apart from violation in the balcony had

been committed by the management of the cinema hall. The

High Court held that construction of refreshment counters on

the first floor of the cinema hall inhibited free passage of the

patrons which was crucial in the event of an emergency and

amounted to violation of para 10(1) of the First Schedule of

Page 75 75

DCR, 1953 and were hence in breach of the provisions of

Section 14 of the Cinematograph Act and the licence issued

thereunder. Similarly, the exhaust fans were so placed that

they opened into the hall of the front staircase instead of

opening into an open space. The structural deviations,

according to the High Court, assumed an incrementally risky

character which the cinema occupier was aware of. Similarly,

the other violations referred to by the High Court including

the storage and use of combustible materials and closing of

one of the exits, besides shifting of the gangway contributed

to violations that prevented quick dispersal of the patrons

from the balcony area thereby culminating in the tragedy.

V Re: Seating arrangement in the balcony:

35.The High Court dealt with blocking of the right side exit

by placing an 8-seater family box, addition of seats on the

left side of the balcony that prevented quick dispersal of the

patrons, providing gangways which were less than the

Page 76 76

required width and fixing of seats obstructing the left side

(new) exit all of which contributed to a situation from which

the victims could not escape to save their lives. The High

Court further held that blocking of the right side exit by the

8-seater box rendered ineffective the mandate of para 9(1),

DCR, 1953 which required that at least two stairways be

provided for public use each not less than 4 ft. wide. Each

one of these deviations had, according to the High Court, the

effect of substantially increasing the risk to a point where an

emergency requiring rapid egress from the balcony area

could not have been effectively handled to save human lives.

36.The High Court also affirmed the findings of the Trial

Court on the following aspect and held that –

(i)Patrons were exposed to smoke for a long time and

many were unable to leave the place swiftly.

(ii)Several eye witnesses had deposed that the balcony

doors were bolted.

Page 77 77

(iii)The entry/exit doors leading to the foyer had to be

forced open.

(iv)The gatekeeper, Manmohan Uniyal (A-8) who was on

duty at the time of the incident, had left his duty

without unbolting the doors.

(v) Absence of emergency lighting arrangements and

absence of help at the critical juncture exposed the

patrons to thick dense smoke for a long period that

hindered their movement and finally claimed many

lives.

(vi) No public address system was in use nor were there any

emergency lights.

(vii) The cause of death was asphyxiation due to carbon

monoxide poisoning.

(viii) Many patrons who had managed to escape from the

balcony were trapped and had to break the open

windows to flee.

Page 78 78

(ix) Eye witness accounts established the presence of fire

and hot smoke in the ground floor from 5.05 pm to 6.20

p.m. and the presence of smoke in the balcony even as

late as 5.45 p.m. when the Chief Fire Officer removed 3

persons from the balcony.

37.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 304A, 337 and 338 read with

Section 36 of the IPC but reduced the sentence awarded to

them under Section 304A to one year rigorous imprisonment

without interfering with the fine imposed by the Trial Court.

The High Court also reduced the sentence awarded to the

aforementioned three appellants under Section 337 to three

months rigorous imprisonment and under Section 338 to one

year rigorous imprisonment with the direction that the

sentences shall run concurrently including the sentence

awarded to Ansal brothers (A-1 and A-2) under Section 14 of

Page 79 79

the Cinematograph Act for which too the said two accused

persons were convicted.

38.As regards the conviction of Manmohan Uniyal (A-8)

gatekeeper, B.M. Satija (A-9) DVB Inspector and Bir Singh

(A-11) Senior Fitter DVB, the High Court altered the same

from Section 304 Part II read with Section 36 IPC to Sections

304A , 337 and 338 read with Section 36 IPC. The sentence

awarded to them was accordingly reduced to two years

rigorous imprisonment with a fine of Rs.2,000/- under

Section 304A, 6 months rigorous imprisonment with a fine of

Rs.500/- under Section 337 and one year rigorous

imprisonment with a fine of Rs.1,000/- under Section 338

with a default sentence of four months. The sentences were

directed to run concurrently.

39.The remaining convicted persons, namely, R.K. Sharma

(A-5), since deceased, N.S. Chopra (A-6) as well as A.K.

Gera (A-10) DVB Inspector, S.S. Sharma (A-13) and N.D.

Tiwari (A-14), MCD Officials were acquitted by the High Court

Page 80 80

and the revision petition filed by Association of Victims of

Uphaar Tragedy dismissed.

40.Appeals have been filed before us by all those convicted

and 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

No.605-616 of 2010 filed by the CBI challenging the acquittal

recorded by the High Court in favour of the four persons

mentioned above. The Association of Victims of Uphaar

Cinema has also filed Criminal Appeals No.600-602 of 2010

in which they have challenged the order of acquittal recorded

by the High Court and prayed for a retrial of the accused

persons for the offence punishable under Section 304 Part II

IPC.

41.We have heard learned counsel for the parties at

considerable length, who were at pains to refer to the

evidence adduced at the trial to buttress their respective

Page 81 81

submissions. Broadly stated the following questions arise for

our determination:

(I) Whether the concurrent findings of fact recorded by

the Courts below prove the commission of any rash

and/or negligent act by the accused persons or any

one of them within the meaning of Section 304A of

the IPC?

(II)Was the High Court justified in acquitting the

Respondents no.4 (N.S. Chopra), no.7 (A.K. Gera),

no.10 (S.S. Sharma) and no.11 (N.D. Tiwari)

respondent in Criminal Appeal No.605-616 of 2010

filed by the CBI?

(III)Is there any basis for holding that the accused or any

one of them was guilty of an offence of culpable

homicide not amounting to murder punishable under

Section 304 Part II of the IPC so as to justify a retrial of

the accused persons for the said offence?

Page 82 82

(IV)Whether the sentence awarded to those found guilty by

the High Court deserves to be enhanced?

(V)What relief and/or general or specific directions need be

issued in the matter having regard to the nature of the

incident?

42.We propose to deal with the above questions ad

seriatim.

Re: Question No.I:

43.Since this question has several facets to it, we propose

to deal with the same under the following sub-headings to

ensure clarity and avoid any possible confusion or repetition:

(i)Scope of a criminal appeal by special leave

(ii)‘Rash’ or ‘Negligent’ – Meaning of

(iii)What constitutes negligence?

Page 83 83

(iv)Difference between Negligence in civil actions

and that in criminal cases.

(v)The doctrine of causa causans.

(vi)Whether Ansal brothers were occupiers of

Uphaar Cinema building?

(vii)Degree and nature of care expected of an

occupier of a cinema building.

(viii)Whether the accused were negligent and if

so, whether the negligence was gross?

(ix)Contentions urged in defence and the

findings thereon.

(i)Scope of a Criminal Appeal by Special Leave :

44.The scope of a criminal appeal by special leave filed

before this Court has been examined in several

pronouncements of this Court over the past few decades. It

is unnecessary to burden this judgment by referring to all

those pronouncements, for a reference to only some of those

decisions should suffice. Among them the scope of an appeal

by special leave in a criminal matter was considered by a

three-Judge Bench of this Court in Mst. Dalbir Kaur v.

State of Punjab (1976) 4 SCC 158 and the principle

Page 84 84

governing interference by this Court in criminal appeals by

special leave summarized in the following words:

“8. Thus the principles governing interference by

this Court in a criminal appeal by special leave may

be summarised as follows:

(1) that this Court would not interfere with

the concurrent finding of fact based on pure

appreciation of evidence even if it were to take

a different view on the evidence;

(2) that the Court will not normally enter into a

reappraisement or review of the evidence,

unless the assessment of the High Court is

vitiated by an error of law or procedure or is

based on error of record, misreading of

evidence or is inconsistent with the evidence,

for instance, where the ocular evidence is

totally inconsistent with the medical evidence

and so on;

(3) that the Court would not enter into

credibility of the evidence with a view to

substitute its own opinion for that of the High

Court;

(4) that the Court would interfere where the

High Court has arrived at a finding of fact in

disregard of a judicial process, principles of

natural justice or a fair hearing or has acted in

violation of a mandatory provision of law or

procedure resulting in serious prejudice or

injustice to the accused;

(5) this Court might also interfere where on the

proved facts wrong inferences of law have been

drawn or where the conclusions of the High

Court are manifestly perverse and based on no

evidence: It is very difficult to lay down a rule

of universal application but the principles

mentioned above and those adumbrated in the

authorities of this Court cited supra provide

sufficient guidelines for this Court to decide

Page 85 85

criminal appeals by special leave. Thus in a

criminal appeal by special leave, this Court at

the hearing examines the evidence and the

judgment of the High Court with the limited

purpose of determining whether or not the High

Court has followed the principles enunciated

above. Where the Court finds that the High

Court has committed no violation of the various

principles laid down by this Court and has made

a correct approach and has not ignored or

overlooked striking features in the evidence

which demolish the prosecution case, the

findings of fact arrived at by the High Court on

an appreciation of the evidence in the

circumstances of the case would not be

disturbed.”

45.In Radha Mohan Singh @ Lal Sahib and Ors. v.

State of U.P. (2006) 2 SCC 450 , this Court declared that it

will not normally enter into reappraisal or review of evidence

in an appeal under Article 136 of the Constitution unless the

Trial Court or the High Court is shown to have committed an

error of law or procedure and the conclusions arrived at are

found to be perverse. To the same effect is the decision of

this Court in Raj Narain Singh v. State of U.P. and Ors.

(2009) 10 SCC 362 , where this Court held that the scope

of appeal under Article 136 of the Constitution was very

limited and that this Court does not exercise overriding

powers under the said provision to reweigh the evidence and

Page 86 86

disturb the concurrent findings of fact reached upon proper

appreciation. We may also refer to the decision of this Court

in Surendra Pal and Ors. v. State of U.P. and Anr.

(2010) 9 SCC 399 where this Court held that it could not

embark upon a re-appreciation of the evidence when both

the Sessions Court and the High Court had agreed in their

appreciation of the evidence and arrived at concurrent

findings of fact. This Court cautioned that it was necessary to

bear in mind the limited scope of the proceedings under

Article 136 of the Constitution which cannot be converted

into a third appeal on facts and that mere errors are not

enough to attract this Court’s invigilatory jurisdiction. A

similar view was expressed by this Court in Amitava

Banerjee v. State of West Bengal (2011) 12 SCC 554

and Mohd. Arif v. State (NCT) of Delhi, (2011) 13 SCC

621 to which decisions one of us (Thakur, J.) was a party.

46.Suffice it to say that this Court is not an ordinary Court

of appeal obliged to reappraise the evidence and record its

conclusion. The jurisdiction to interfere under Article 136 is

Page 87 87

extraordinary and the power vested in this Court is not

exercised to upset concurrent findings of fact recorded by the

two Courts below on a proper appreciation of evidence. It is

only in those rare and exceptional cases where the

appreciation of evidence is found to be wholly unsatisfactory

or the conclusion drawn from the same perverse in nature,

causing miscarriage of justice that this Court may correct the

course of justice and undo the wrong. Perversity in the

findings, illegality or irregularity in the trial that results in

injustice or failure to take into consideration an important

piece of evidence are some of the situations in which this

Court may reappraise the evidence adduced at the trial but

not otherwise. The scope of interference with the findings of

fact concurrently found by the Trial Court and the First

Appellate Court is thus permissible as a rarity only in the

situations enumerated above and not as a matter of course

or for mere asking.

(ii)‘Rash’ or ‘Negligent’ – Meaning of:

Page 88 88

47.Section 304A of the IPC makes any act causing death

by a rash or negligent act not amounting to culpable

homicide, punishable with imprisonment of either description

for a term which may extend to two years or with fine or with

both. It reads:

“304A. Causing death by negligence.-- Whoever

causes the death of any person by doing any rash or

negligent act not amounting to culpable homicide

shall be punished with imprisonment of either

description for a term which may extend to two

years, or with fine, or with both.”

48.The terms ‘rash’ or ‘negligent’ appearing in Section

304A extracted above have not been defined in the Code.

Judicial pronouncements have all the same given a meaning

which has been long accepted as the true purport of the two

expressions appearing in the provisions. One of the earliest

of these pronouncements was in Empress of India v. Idu

Beg ILR (1881) 3 All 776 , where Straight J. explained that

in the case of a rash act, the criminality lies in running the

risk of doing an act with recklessness or indifference as to

consequences. A similar meaning was given to the term

Page 89 89

‘rash’ by the High Court of Madras in In Re: Nidamarti

Negaghushanam 7 Mad HCR 119 , where the Court held

that culpable rashness meant acting with the consciousness

that a mischievous and illegal consequence may follow, but

hoping that it will not. Culpability in the case of rashness

arises out of the person concerned acting despite the

consciousness. These meanings given to the expression

‘rash’, have broadly met the approval of this Court also as is

evident from a conspectus of decisions delivered from time to

time, to which we shall presently advert. But before we do

so, we may refer to the following passage from “A

Textbook of Jurisprudence” by George Whitecross Paton

reliance whereupon was placed by Mr. Jethmalani in support

of his submission. Rashness according to Paton means

“where the actor foresees possible consequences, but

foolishly thinks they will not occur as a result of his act”.

49. In the case of ‘negligence’ the Courts have favoured a

meaning which implies a gross and culpable neglect or failure

to exercise that reasonable and proper care and precaution

Page 90 90

to guard against injury either to the public generally or to an

individual which having regard to all the circumstances out of

which the charge arises, it may be the imperative duty of the

accused to have adopted. Negligence has been understood

to be an omission to do something which a reasonable man

guided upon those considerations which ordinarily regulate

the conduct of human affairs, would do, or doing something

which a prudent and reasonable person would not do. Unlike

rashness, where the imputability arises from acting despite

the consciousness, negligence implies acting without such

consciousness, but in circumstances which show that the

actor has not exercised the caution incumbent upon him.

The imputability in the case of negligence arises from the

neglect of the civil duty of circumspection.

(iii)What constitutes Negligence? :

50.The expression ‘negligence’ has also not been defined in

the Penal Code, but, that has not deterred the Courts from

giving what has been widely acknowledged as a reasonably

acceptable meaning to the term. We may before referring to

Page 91 91

the judicial pronouncements on the subject refer to the

dictionary meaning of the term ‘negligence’.

51.Black’s Law Dictionary defines negligence as under:

“The failure to exercise the standard of care that a

reasonably prudent person would have exercised in

a similar situation; any conduct that falls below the

legal standard established to protect others against

unreasonable risk of harm, except for conduct that is

intentionally, wantonly, or willfully disregardful of

other’s rights.”

52.Charlesworth and Percy on Negligence (Twelfth

Edition) gives three meanings to negligence in forensic

speech viz: (i) in referring to a state of mind, when it is

distinguished in particular from intention; (ii) in describing

conduct of a careless type; and (iii) as the breach of a duty

to take care imposed by either common law or statute. The

three meanings are then explained thus:

“The first meaning: Negligence as a state of mind

can be contrasted with intention. An act is

intentional when it is purposeful and done with the

desire or object of producing a particular result. In

contrast, negligence in the present sense arises

where someone either fails to consider a risk of

particular action, or having considered it, fails to give

the risk appropriate weight.

Page 92 92

The second meaning: Negligence can also be used as

a way to characterize conduct, although such a use

may lead to imprecision when considering negligence

as a tort. Careless conduct does not necessarily give

rise to breach of a duty of care, the defining

characteristic of the tort of negligence. The extent of

a duty of care and the standard of care required in

performance of that duty are both relevant in

considering whether, on any given facts conduct

which can be characterized as careless, is actionable

in law.

“The third meaning : The third meaning of

negligence, and the one with which this volume is

principally concerned, is conduct which, objectively

considered, amounts to breach of a duty to take

care”.

53.Clerk & Lindsell on Torts (Eighteenth Edition) sets

out the following four separate requirements of the tort of

negligence:

"(1) the existence in law of a duty of care situation,

i.e. one in which the law attaches liability to

carelessness. There has to be recognition by law

that the careless infliction of the kind of damages in

suit on the class of person to which the claimant

belongs by the class of person to which the

defendant belongs is actionable;

(2) breach of the duty of care by the defendant, i.e.,

that it failed to measure up to the standard set by

law;

(3) a casual connection between the defendant's

careless conduct and the damage;

Page 93 93

(4) that the particular kind of damage to the

particular claimant is not so unforeseeable as to be

too remote."

54.Law of Torts by Rattanlal & Dhirajlal , explains

negligence in the following words:

“Negligence is the breach of a duty caused by the

omission to do something which a reasonable man,

guided by those considerations which ordinarily

regulate the conduct of human affairs would do, or

doing something which a prudent and reasonable

man would not do. Actionable negligence consists in

the neglect of the use of ordinary care or skill

towards a person to whom the defendant owes the

duty of observing ordinary care and skill, by which

neglect the plaintiff has suffered injury to his person

or property. According to Winfield, “negligence as a

tort is the breach of a legal duty to take care which

results in damage, undesired by the defendant to

the plaintiff”. The definition involves three

constituents of negligence: (1) A legal duty to

exercise due care on the part of the party

complained of towards the party complaining the

former’s conduct within the scope of the duty; (2)

Breach of the said duty; and (3) consequential

damage. Cause of action for negligence arises only

when damage occurs for damage is a necessary

ingredient of this tort. But as damage may occur

before it is discovered; it is the occurrence of

damage which is the starting point of the cause of

action.

55.The above was approved by this Court in Jacob

Mathew v. State of Punjab and Another (2005) 6

SCC 1.

Page 94 94

56.The duty to care in cases whether civil or criminal

including injury arising out of use of buildings is examined by

courts, vis-à-vis occupiers of such bindings. In Palsgraf v.

Long Island Railroad, 248 NY 339 , Justice Cardozo

explained the orbit of the duty of care of an occupier as

under:

“If no hazard was apparent to the eye of ordinary

vigilance, an act innocent and harmless, at least to

outward seeming with reference to her, did not take to

itself the quality of a tort because it happened to be a

wrong, though apparently not one involving the risk of

bodily insecurity, with reference to someone

else...Even then, the orbit of the danger as disclosed

to the eye of reasonable vigilance would be the orbit

of the duty.”

57.To the same effect is the decision in Hartwell v.

Grayson Rollo and Clover Docks Limited and Others

(1947) KB 901 where the duty of an occupier who invites

people to a premises, to take reasonable care that the place

does not contain any danger or to inform those coming to

the premises of the hidden dangers, if any, was explained

thus:

Page 95 95

“In my opinion the true view is that when a person

invites another to a place where they both have

business, the invitation creates a duty on the part of

the invitor to take reasonable care that the place

does not contain or to give warning of hidden

dangers, no matter whether the place belongs to the

invitor or is in his exclusive occupation.”

58.The duty of a theatre owner to his patrons was outlined

as follows in Rosston v. Sullivan, 278 Mass 31 (1932) :

“The general duty to use ordinary care and diligence

to put and keep this theatre in a reasonably safe

condition, having regard to the construction of the

place, character of the entertainment given and the

customary conduct of persons attending.”

59.The above case was cited with approval in Helen

Upham v. Chateau De Ville Theatre Inc 380 Mass 350

(1980).

60.The Supreme Court of Wyoming in Mostert v. CBL &

Associates, et. Al., 741 P.2d 1090 (Wyo. 1987) held

that the owner of a theatre, AMC owed an affirmative duty to

patrons as “business visitor invitees” to inform them of off-

premises dangers (in that case a flash flood) which were

reasonably foreseeable:

Page 96 96

“We conclude that appellee AMC owed the Mostert

family an affirmative duty to exercise reasonable or

ordinary care for their safety which includes an

obligation to advise them of off-premises danger

that might reasonably be foreseeable. We are not

suggesting by our determination that AMC had a

duty to restrain its patrons or even a duty to advise

them what to do. The duty as we see it is only to

reveal what AMC knew to its customers.”

61.In Brown v. B & F Theatres Ltd., (1947) S.C.R.

486, the Supreme Court of Canada held the liability of a

theatre owner to be 90% and the contributory negligence of

the appellant to be 10% in a case with the following facts:

“The appellant, Margaret Brown, was injured by

falling down a stairway in a theatre in Toronto. After

passing through a brightly lighted lobby, she entered

the foyer, intending to go to the ladies’ room. This

was on the left of the entrance and was indicated by

a short electric sign 7’ high facing her as she turned.

In the foyer, a narrow corridor, the lights were

dimmed; and, proceeding along the wall at her left,

she opened what she took to be the door to the

waiting room. A fire extinguisher 2’ long and 4’ from

the floor hung on the wall next to the left side of the

door; and at the right side was a post or panel 7”

wide, projecting about 4” out from the wall; the

door, 31” wide, swinging toward the left, on which

the word “Private” was printed in faint letters, was

between three and four feet in front of the sign and

led to a stairway into the basement. The platform or

landing was about 24” deep and the door must have

swung somewhat before the edge would be brought

into view. Immediately inside on the wall at the

right and on a level with her eyes, was a light which,

on her story, momentarily blinded her. The entrance

Page 97 97

to the ladies’ room was separated from this door by

the post or panel.”

62.Holding that the theatre owner had breached the duty

owed by a proprietor of premises to his invitee, the Court

held as follows:

“Here, Mrs. Brown paid a consideration for the

privileges of the theatre, including that of making

use of the ladies’ room. There was a contractual

relation between her and the theatre management

that exercising prudence herself she might enjoy

those privileges without risk of danger so far as

reasonable care could make the premises safe.”

(emphasis supplied)

63.In Dabwali Fire Tragedy Victims Association v.

Union of India and Ors., (2001) 1 ILR Punjab &

Haryana 368 to which one of us (Thakur J.) was a party,

the High Court of Punjab & Haryana held that both the

school, as well as the owners of a premises on which the

school function was held, were liable as occupiers for the

tragic death of 406 persons, most of them children, caused

by a fire which broke out on the premises during the

function. In dealing with the question whether the owners of

the premises, Rajiv Marriage Palace, being agents of the

Page 98 98

school could be held accountable, the High Court held as

follows:

“..The School ought to have known that in a function

which is open to general public, a Pandal with a

capacity of 500 to 600 persons spread over no more

than an area measuring 100’ x 70’, a gathering of

1200 to 1500 persons could result in a stampede

and expose to harm everyone participating in the

function especially the children who were otherwise

incapable of taking care of their safety. The school

ought to have known that the availability of only one

exit gate from the Marriage Palace and one from the

Pandal would prove insufficient in the event ofany

untoward incident taking place in the course of

function. The School ought to have taken care to

restrict the number of invitees to what could be

reasonably accommodated instead of allowing all

and sundry to attend and in the process increase the

chances of a stampede. The School ought to have

seen that sufficient circulation space in and around

the seating area was provided so that the people

could quickly move out of the place in case the need

so arose. Suffice it to say that a reasonably prudent

School Management organizing an annual function

could and indeed was duty bound to take care and

ensure that no harm came to anyone who attended

the function whether as an invitee or otherwise, by

taking appropriate steps to provide for safety

measures like fire fighting arrangements, exit

points, space for circulation, crowd control and the

like. And that obligation remained unmitigated

regardless whether the function was held within the

School premises or at another place chosen by the

Management of the School, because the children

continued to be under the care of the School and so

did the obligation of the School to prevent any harm

coming to them. The principle of proximity creating

an obligation for the School qua its students and

invitees to the function would make the School liable

for any negligence in either the choice of the venue

of the function or the degree of care that ought to

Page 99 99

have been taken to prevent any harm coming to

those who had come to watch and/or participate in

the event. Even the test of foreseeability of the

harm must be held to have been satisfied from the

point of view of an ordinary and reasonably prudent

person. That is because a reasonably prudent person

could foresee danger to those attending a function in

a place big enough to accommodate only 500 to 600

people but stretched beyond its capacity to

accommodate double that number. It could also be

foreseen that there was hardly any space for

circulation within the Pandal. In the event of any

mishap, a stampede was inevitable in which women

and children who were attending in large number

would be worst sufferers as indeed they turned out

to be. Loose electric connections, crude lighting

arrangements and an electric load heavier than what

the entire system was geared to take was a recipe

for a human tragedy to occur. Absence of any fire

extinguishing arrangements within the Pandal and a

single exit from the Pandal hardly enough for the

people to run out in the event of fire could have put

any prudent person handling such an event to

serious thought about the safety of those attending

the functioning especially the small children who had

been brought to the venue in large numbers…”

64.Referring to the English decisions in Wheat v. E. Lacon

& Co. (1966) 1 All ER 582, Hartwell v. Grayson Rollo

(supra), Thomson v. Cremin (1953) 2 All ER 1185 and H

& N Emanuel Ltd. v. Greater London Council & Anr.

(1971) 2 All ER 835, the High Court went on to hold as

follows:

Page 100 100

“93. In the instant case while the School had the

absolute right to restrict the entry to the venue of

the function being organized by it and everything

that would make the function go as per its

requirements, the owners had not completely given

up their control over the premises, and were indeed

present at the time the incident occurred. The facts

and circumstances brought on record in the course

of the enquiry establish that the School and the

Marriage Palace owners were both occupying the

premises and were, therefore, under an obligation to

take care for the safety of not only the students, but

everyone who entered the premises on their

invitation or with their permission specific or

implied. As to the obligation of an occupier to take

care qua his invitees a long line of English decisions

have settled the legal position...

xx xx xx

97. In the light of the above, we have no hesitation

in holding that the One Man Commission of Inquiry

was perfectly justified in holding the School and the

Marriage Palace liable for the act of tort arising out

of their negligence and duty to take care about the

safety of all those invited to the function at Dabwali.

Question No. 2 is answered accordingly.”

65.In R. v. Gurphal Singh [1999] CrimLR 582 , the

Court of Appeal in England dealt with a case where a person

staying at a lodging house occupied and managed by the

Singh family died in his sleep due to carbon monoxide

poisoning. The cause of the carbon monoxide was the

blocking of the chimney in the room of the lodger, as well as

in the neighbouring room due to which the smoke from a fire

Page 101 101

in the room could not escape. While determining whether the

Singh family had breached their duty of care, the Court held

as follows:

“...In substance this is a case where those living in

the room in which Mr. Foster died in a lodging house

managed by Singh family. They were led to believe

that the appellant and his father would take care

that they were not poisoned by equipments provided

by the family. The appellant was possessed of

sufficient information to make him aware of a

danger of death from gas. He may not have had

sufficient skill to be able to discover how that danger

arose but he was responsible for taking reasonable

steps to deal with that danger if need by calling in

expert help. In those circumstances the judge was

right to hold that there was a sufficient proximity

between the lodgers on the one side and the father

and son on the other side to place a duty of care on

the latter.”

66.To sum up, negligence signifies the breach of a duty to

do something which a reasonably prudent man would under

the circumstances have done or doing something which when

judged from reasonably prudent standards should not have

been done. The essence of negligence whether arising from

an act of commission or omission lies in neglect of care

towards a person to whom the defendant or the accused as

the case may be owes a duty of care to prevent damage or

Page 102 102

injury to the property or the person of the victim. The

existence of a duty to care is thus the first and most

fundamental of ingredients in any civil or criminal action

brought on the basis of negligence, breach of such duty and

consequences flowing from the same being the other two. It

follows that in any forensic exercise aimed at finding out

whether there was any negligence on the part of the

defendant/accused, the Courts will have to address the

above three aspects to find a correct answer to the charge.

(iv)Difference between negligence in civil actions and

in criminal cases:

67.Conceptually the basis for negligence in civil law is

different from that in criminal law, only in the degree of

negligence required to be proved in a criminal action than

what is required to be proved by the plaintiff in a civil action

for recovery of damages. For an act of negligence to be

culpable in criminal law, the degree of such negligence must

be higher than what is sufficient to prove a case of

negligence in a civil action. Judicial pronouncements have

Page 103 103

repeatedly declared that in order to constitute an offence,

negligence must be gross in nature. That proposition was

argued by Mr. Ram Jethmalani at great length relying upon

English decisions apart from those from this Court and the

High Courts in the country. In fairness to Mr. Salve, counsel

appearing for the CBI and Mr. Tulsi appearing for the

Association of Victims, we must mention that the legal

proposition propounded by Mr. Jethmalani was not disputed

and in our opinion rightly so. That negligence can constitute

an offence punishable under Section 304A of the IPC only if

the same is proved to be gross, no matter the word “gross”

has not been used by the Parliament in that provision is the

settled legal position. It is, therefore, unnecessary for us to

trace the development of law on the subject, except making

a brief reference to a few notable decisions which were

referred to at the bar.

68.One of the earliest decisions which examined the

question of criminal negligence in England was R. v.

Bateman (1925) 94 L.J.K.B. 791 where a doctor was

Page 104 104

prosecuted for negligence resulting in the death of his

patient. Lord Hewart L.C.J. summed up the test to be applied

in such cases in the following words:

“A doctor is not criminally responsible for a

patient's death unless his negligence or

incompetence passed beyond a mere matter of

compensation and showed such disregard for life

and safety as to amount to a crime against the

State.”

69.Nearly two decades later the Privy Council in John Oni

Akerele v. The King AIR 1943 PC 72 found itself

confronted by a similar question arising out of the alleged

medical negligence by a doctor who was treating patients for

an endemic disease known as “Yaws“ which attacks both

adults and children causing lesions on the body of the

patient. Following the treatment, 10 children whom the

accused had treated died allegedly because the injection

given to the patients was too strong resulting in an

exceptional reaction among the victims. The allegation

against the doctor was that he had negligently prepared too

strong a mixture and thereby was guilty of manslaughter on

Page 105 105

account of criminal negligence. Relying upon Lord Hewart’s

L.C.J. observations extracted above, the Privy Council held:

“11. Both statements are true and perhaps cannot

safely be made more definite, but it must be

remembered that the degree of negligence required

is that it should be gross, and that neither a jury nor

a Court can transform negligence of a lesser degree

into gross negligence merely by giving it that

appellation. The further words spoken by the Lord

Chief Justice in the same case are, in their

Lordships' opinion, at least as important as those

which have been set out:

It is desirable that, as far as possible, the

explanation of criminal negligence to a jury should

not be a mere question of epithets. It is, in a sense,

a question of degree, and it is for the jury to draw

the line, but there is a difference in kind between

the negligence which gives a right to compensation

and the negligence which is a crime.”

70.What is important is that the Privy Council clearly

recognized the difficulty besetting any attempt to define

culpable or criminal negligence and held that it was not

possible to make the distinction between actionable and

criminal negligence intelligible, except by means of

illustrations drawn from actual judicial opinions. On the facts

of that case the Privy Council accepted the view that merely

because a number of persons had taken gravely ill after

Page 106 106

receiving an injection from the accused, a criminal degree of

negligence was not proved.

71.In Jacob Mathew’s case (supra) a three-Judge Bench

of this Court was examining a case of criminal medical

negligence by a doctor under Section 304A IPC. This Court

reviewed the decisions on the subject including the decision

of the Privy Council in John Oni Akerele’s case (supra) to

sum up its conclusions in para 48. For the case at hand

conclusions 5 and 6 bear relevance which may, therefore, be

extracted:

“48. We sum up our conclusions as under:

xxx xxx xxx

(5) The jurisprudential concept of negligence differs

in civil and criminal law. What may be negligence in

civil law may not necessarily be negligence in

criminal law. For negligence to amount to an

offence, the element of mens rea must be shown to

exist. For an act to amount to criminal negligence,

the degree of negligence should be much higher i.e.

gross or of a very high degree. Negligence which is

neither gross nor of a higher degree may provide a

ground for action in civil law but cannot form the

basis for prosecution.

(6) The word “gross” has not been used in

Section 304-A IPC, yet it is settled that in criminal

law negligence or recklessness, to be so held, must

be of such a high degree as to be “gross”. The

Page 107 107

expression “rash or negligent act” as occurring in

Section 304-A IPC has to be read as qualified by the

word “grossly”.”

72.The legal position in England remains the same as

stated in R. v. Bateman (supra). That is evident from a

much later decision of the House of Lords in R. v. Adomako

(1994) 3 All ER 79 where the legal principle of negligence

in cases involving manslaughter by criminal negligence were

summed up in the following words:

“...In my opinion the law as stated in these two

authorities is satisfactory as providing a proper basis

for describing the crime of involuntary

manslaughter. Since the decision in Andrews v.

DPP (1937) 2 All ER 552, was a decision of your

Lordships' House, it remains the most authoritative

statement of the present law which I have been able

to find and although its relationship to R. v.

Seymour (1983) 2 ALL ER 1058 is a matter to

which I shall have to return, it is a decision which

has not been departed from. On this basis in my

opinion the ordinary principles of the law of

negligence apply to ascertain whether or not the

defendant has been in breach of a duty of care

towards the victim who has died. If such breach of

duty is established the next question is whether that

breach of duty caused the death of the victim. If so,

the jury must go on to consider whether that breach

of duty should be characterised as gross negligence

and therefore as a crime. This will depend on the

seriousness of the breach of duty committed by the

defendant in all the circumstances in which the

defendant was placed when it occurred. The jury will

have to consider whether the extent to which the

Page 108 108

defendant's conduct departed from the proper

standard of care incumbent upon him, involving as it

must have done a risk of death to the patient, was

such that it should be judged criminal.

It is true that to a certain extent this involves

an element of circularity, but in this branch of the

law I do not believe that is fatal to its being correct

as a test of how far conduct must depart from

accepted standards to be characterised as criminal.

This is necessarily a question of degree and an

attempt to specify that degree more closely is I

think likely to achieve only a spurious precision. The

essence of the matter, which is supremely a jury

question, is whether, having regard to the risk of

death involved, the conduct of the defendant was so

bad in all the circumstances as to amount in their

judgment to a criminal act or omission...”

73.There is no gainsaying that negligence in order to

provide a cause of action to the affected party to sue for

damages is different from negligence which the prosecution

would be required to prove in order to establish a charge of

‘involuntary manslaughter’ in England, analogous to what is

punishable under Section 304A, IPC in India. In the latter

case it is imperative for the prosecution to establish that the

negligence with which the accused is charged is ‘gross’ in

nature no matter Section 304A, IPC does not use that

expression. What is ‘gross’ would depend upon the fact

situation in each case and cannot, therefore, be defined with

Page 109 109

certitude. Decided cases alone can illustrate what has been

considered to be gross negligence in a given situation.

74.We propose to revert to the subject at an appropriate

stage and refer to some of the decided cases in which this

Court had an occasion to examine whether the negligence

alleged against the accused was gross, so as to constitute

an offence under Section 304A of the IPC.

(V)Doctrine of Causa Causans :

75.We may now advert to the second and an equally, if

not, more important dimension of the offence punishable

under Section 304-A IPC, viz. that the act of the accused

must be the proximate, immediate or efficient cause of the

death of the victim without the intervention of any other

person’s negligence. This aspect of the legal requirement is

also settled by a long line of decisions of Courts in this

country. We may at the outset refer to a Division Bench

decision of the High Court of Bombay in Emperor v. Omkar

Rampratap (1902) 4 Bom LR 679 where Sir Lawrence

Page 110 110

Jenkins speaking for the Court summed up the legal position

in the following words:

“…to impose criminal liability under Section 304-A,

Indian Penal Code, it is necessary that the act

should have been the direct result of a rash and

negligent act of the accused and that act must be

proximate and efficient cause without the

intervention of another negligence. It must have

been the causa causans; it is not enough that it may

have been the causa sine qua non.”

76.The above statement of law was accepted by this Court

in Kurban Hussein Mohamedalli Rangawalla v. State of

Maharashtra AIR 1965 SC 1616 . We shall refer to the

facts of this case a little later especially because Mr.

Jethmalani, learned Counsel for the appellant-Sushil Ansal,

placed heavy reliance upon the view this Court has taken in

the fact situation of that case.

77.Suffice it to say that this Court has in Kurban

Hussein’s case (supra) accepted in unequivocal terms the

correctness of the proposition that criminal liability under

Section 304-A of the IPC shall arise only if the prosecution

proves that the death of the victim was the result of a rash

Page 111 111

or negligent act of the accused and that such act was the

proximate and efficient cause without the intervention of

another person’s negligence. A subsequent decision of this

Court in Suleman Rahiman Mulani v. State of

Maharashtra AIR 1968 SC 829 has once again approved

the view taken in Omkar Rampratap’s case (supra) that

the act of the accused must be proved to be the causa

causans and not simply a causa sine qua non for the death

of the victim in a case under Section 304-A of the IPC.

78.To the same effect are the decisions of this Court in

Rustom Sherior Irani v. State of Maharashtra 1969

ACJ 70; Balchandra @ Bapu and Anr. v. State of

Maharashtra AIR 1968 SC 1319; Kishan Chand v. State

of Haryana (1970) 3 SCC 904; S.N Hussain v. State of

A.P. (1972) 3 SCC 18; Ambalal D. Bhatt v. State of

Gujarat (1972) 3 SCC 525 and Jacob Mathew‘s case

(supra).

79.To sum up: for an offence under Section 304-A to be

proved it is not only necessary to establish that the accused

Page 112 112

was either rash or grossly negligent but also that such

rashness or gross negligence was the causa causans that

resulted in the death of the victim. As to what is meant by

causa causans we may gainfully refer to Black’s Law

Dictionary (Fifth Edition) which defines that expression as

under:

“The immediate cause; the last link in the chain of

causation.”

80.The Advance Law Lexicon edited by Justice

Chandrachud, former Chief Justice of India defines Causa

Causans as follows:

”the immediate cause as opposed to a remote

cause; the ‘last link in the chain of causation’; the

real effective cause of damage”

81.The expression “proximate cause” is defined in the 5

th

edition of Black’s Law Dictionary as under:

“That which in a natural and continuous sequence

unbroken by any efficient, intervening cause,

produces injury and without which the result would

not have occurred. Wisniewski vs. Great Atlantic &

Pac. Tea Company 226 Pa. Super 574, 323 A2d,

744, 748. That which is nearest in the order of

Page 113 113

responsible causation. That which stands next in

causation to the effect, not necessarily in time or

space but in causal relation. The proximate cause of

an injury is the primary or moving cause, or that

which in a natural and continuous sequence,

unbroken by any efficient intervening cause,

produces the injury and without which the accident

could not have happened, if the injury be one which

might be reasonably anticipated or foreseen as a

natural consequence of the wrongful act. An injury

or damage is proximately caused by an act, or a

failure to act, whenever it appears from the

evidence in the case, that the act or omission played

a substantial part in bringing about or actually

causing the injury or damage; and that the injury or

damage was either a direct result or a reasonably

probable consequence of the act or omission.”

(vi)Whether Ansal brothers were occupiers of Uphaar

cinema building:

82.In cases where negligence is alleged in regard to use of

buildings and structures permanent or temporary, the duty

to care is fixed on the person or persons who were occupiers

of such buildings or structures. Since the charge in the

present case also relates to the use of a building, the

question whether the appellants Sushil and Gopal Ansal,

were the occupiers of Uphaar Cinema, so as to cast a duty to

care upon them towards the patrons who came to watch the

exhibition of cinematographs needs to be addressed.

Page 114 114

83.Appearing for Sushil Ansal Mr. Ram Jethmalani, learned

senior advocate, in his inimitable style and remarkable

forensic skill argued that his client Sushil Ansal was not the

occupier of the Uphaar Cinema nor did he owe any duty of

care towards those who came to watch the movie on the

fateful day so as to give rise to any civil or criminal liability

against his client for the alleged breach of any such duty. Mr.

Sushil Kumar appearing for Gopal Ansal, adopted a similar

line of argument and urged that even Gopal Ansal had

nothing to do with the cinema or the management of its

affairs as on the date of the unfortunate fire incident.

Reliance in support of that submission was placed both by

Mr. Jethmalani and Mr. Sushil Kumar on the fact that the

Cinema was owned by GPTA Pvt. Ltd. and later by Ansal

Theaters & Clubotels Pvt. Ltd. who alone could be said to be

the occupiers of the Cinema at the relevant point of time.

Reliance was also placed upon the fact that Sushil Ansal was

the Managing Director of the Company only till 21

st

November, 1983. He had finally retired from the Board on

Page 115 115

17

th

October, 1988, thereby putting an end to his association

with the Cinema and its affairs. Even Gopal Ansal who took

over as Managing Director of the Company on 21

st

November, 1983 had retired from the Board of Directors on

17

th

October, 1988, whereafter he exercised no control over

the Cinema or its management to earn him what is

retrospect is a dubious distinction of being the “occupier of

the cinema”. He had no doubt resumed the Directorship of

the company for a period of six months in December, 1994,

but was concerned only with the business of the Clubs being

run by the company. This implied, according to the learned

counsel, that neither Sushil nor Gopal Ansal was the occupier

of the Cinema on the date of the occurrence to give rise to

any civil or criminal liability against them.

84.Before we deal with the factual backdrop, in which the

question whether the Ansal Brothers were occupiers of the

Cinema has to be answered, we must steer clear of the

impression that an occupier must be the owner of the

premises. While it is true that an owner may in a given fact

Page 116 116

situation be also the occupier of the premises owned by him,

it is not correct to say that for being an occupier one must

necessarily be the owner of the premises in question. What

is important is whether the premises in question was

sufficiently and not exclusively under the control of

defendant/accused, and for being in such control, ownership

of the premises is not a condition precedent. An occupier

may be in control of the premises even when he does not

own the same whether fully or jointly with others. It is also

not necessary that the control must be full and all pervasive.

It follows that if there are more than one occupiers of a

building, and each one neglects the duty to care, the liability

whether civil or criminal will fall on all of them. The law on

the subject is settled in England by the decision of the House

of Lords in Wheat v. E. Lacon & Co. (supra), where Lord

Denning applied the test of sufficient degree of control and

not exclusive or entire control to determine whether the

person concerned was an occupier. The following passage is

apposite in this regard:

Page 117 117

“It was simply a convenient word to denote a person

who had a sufficient degree of control over premises

to put him under a duty of care towards those who

came lawfully on to the premises. In order to be an

'occupier' it is not necessary for a person to have

entire control over the premises. He need not have

exclusive occupation. Suffice it that he has some

degree of control. He may share the control with

others. Two or more may be occupiers. And

whenever this happens, each is under a duty to use

care towards persons coming lawfully on to the

premises, dependent on his degree of control. If

each fails in his duty, each is liable to a visitor who

is injured in consequence of his failure but each may

have a claim to contribution from the other.”

85.To the same effect is the decision in H & N Emanuel

Ltd. v. Greater London Council & Anr. (supra) where the

Court made the following observations:

“Any person was an occupier for the purposes of fire

if he had a sufficient degree of control over the

premises and could say with authority to anyone

who came there, “Do or do not light a fire,” or “Put

out that fire”. If he could, he was liable for

negligence on the part of any person who came

there.”

86.Coming to the facts of the case at hand, merely

because the company was the legal owner of the Cinema

premises, did not mean that the Company and Company

alone was the occupier thereof. The question whether the

Ansal Brothers (Sushil and Gopal) exercised any control over

Page 118 118

the affairs of the Cinema, and its maintenance was a pure

and simple question of fact, on which a great deal of

evidence was led at the trial, and appreciated by the two

Courts below. We have in the preceding part of this

judgment referred to the findings of fact recorded by the

Courts below on that aspect. But, for the sake of

completeness, we may refer to those findings in some detail

at this stage over again.

87.The trial Court and, so also, the High Court have both

concurrently held that Sushil and Gopal Ansal were, at all

material times, at the helm of the affairs of the company that

owned Uphaar cinema. All crucial decisions relating to the

cinema including decisions regarding installation of DVB

transformer on the premises, closure of the right side exit &

gangway and rearrangement of the seating plan in the

balcony were taken while either one or the other of the two

was either a Director or Managing Director of the company.

Both the Courts have further found that Ansal brother’s

control over the day-to-day affairs and the staff employed to

Page 119 119

look after the cinema management continued even upto the

date of the incident. In particular the Courts below have

concurrently held that the decision to install the DVB

transformer and to let out various parts of the premises for

commercial use in violation of the sanctioned plan were

taken by Sushil Ansal as Managing Director of the company.

Applications for grant of the cinema license and subsequent

renewals were found to have been made by him as the

representative licensee on behalf of the company even after

his purported retirement from the Board of Directors. Not

only that, the Courts below have concurrently held that

Sushil Ansal was exercising a high degree of financial control

over the affairs of the company and the cinema owned by

him. Gopal Ansal was similarly exercising an equally

extensive degree of financial control even after his

retirement as Director. The Courts below have also found

that all decisions relating to changes in the balcony seating

arrangement and installation of additional seats were taken

during Gopal Ansal’s term as Managing Director and at his

Page 120 120

request. The Courts have noticed and relied upon the Show

Cause Notice dated 28

th

May, 1982 in which Gopal Ansal, the

Managing Director, was cautioned about the dangerous

practice being followed by the cinema management of bolting

the doors of the cinema hall during the exhibition of the

films. An assurance to the effect that such a practice would

be discontinued was given by Gopal Ansal as Managing

Director of the company.

88.In conclusion the High Court has outlined eight

decisions which were directly attributable to the Ansal

brothers including decisions relating to the day-to-day affairs

and commercial use of the cinema premises as also the

seating arrangement in the balcony and in no uncertain

terms rejected the argument that Ansal brothers had nothing

to do with the company and the cinema after their

retirement from the Board of Directors in 1988. All these

findings are, in our opinion, supported by overwhelming

evidence on record which satisfactorily proves not only that

Ansal brothers continued to exercise all pervasive control

Page 121 121

over the affairs of the cinema but also because the cinema

license, at all material times, showed Sushil Ansal as the

representative license of the Uphaar Cinema. Our attention

was also drawn to an affidavit filed by Sushil Ansal marked as

EX.PW.50/B in which Sushil Ansal unequivocally

acknowledged that he was the occupier of the cinema. The

relevant portion of the affidavit reads as under:

“I, Sushil Ansal, s/o Late Shri Charanji Lal, R/o

N-148, Panchshila Park, New Delhi, Chairman of

Green Park Theatres Associated (P) Ltd., 115 Ansal

Bhawan, 16 Kastuba Gandhi Marg, New Delhi –

110001, am applying for renewal of License for the

year 1992-93. I have not without permission,

transferred the License or the Licensed place or the

Cinematographs to any person during the year

1991-92 to exhibit films in the Licensed place. I am

still the occupier of the licensed premises and owner

of the Cinematograph.”

(emphasis

supplied)

89.The Courts below have, in our view, correctly noticed

the fact that not one out of a total of 5000 shares of the

company was ever owned by anyone outside the Ansal

family. The Courts have also placed reliance upon the

depositions of Pranav Ansal (PW-109), V.K. Aggarwal (PW-

Page 122 122

113), Subhash Verma (PW-114) and Kusum Ansal, wife of

Sushil Ansal (PW-115) to conclude that all these persons who

were Directors or had financial powers on the date of the

incident were completely unaware of the affairs of the

company as well as the cinema enterprise, a fact, that goes a

long way to prove that the cinema was being managed by

Ansal brothers who had a complete sway over its affairs.

What is worse is that some of these witnesses expressed

their ignorance about whether they were Directors or

whether they had financial powers within the company or

that the company was still involved in cinema business.

90.The cumulative effect of the above facts and

circumstances proved by cogent evidence placed on record

by the prosecution, in our view, fully supports the

prosecution case that Sushil and Gopal Ansal were in full

control over the affairs of the company which owned the

cinema, as well as the cinema itself, at all material times,

including the date of the incident. We have, therefore, no

hesitation in affirming the finding that the Ansal brothers -

Page 123 123

Sushil and Gopal were both occupiers of the cinema complex

as on the date of the incident in which capacity they owed a

duty to care for the safety of the patrons visiting/coming to

the premises.

91.It was contended by Mr. Jethmalani that the offence if

any having been committed by the company, officers of the

company could not be vicariously held guilty of criminal

negligence. Reliance, in support of that submission was

placed by Mr. Jethmalani upon the provisions of Section 141

of the Negotiable Instruments Act and the decisions of the

Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla

(2005) 8 SCC 89, JK Industries and others v. Chief

Inspector of Factories and Boilers (1996) 6 SCC 685.

It was urged that in the absence of any provisions in the IPC

rendering the officers of the company vicariously liable for

prosecution for the offences committed by the company,

there was no question of the appellant Ansal brothers being

held guilty that too for an offence committed long after they

had ceased to hold any position in the company. We regret

Page 124 124

our inability to accept that submission. We say so because

the appellants have not been prosecuted as officers of a

company accused of committing an offence, nor is it the case

of the prosecution that the appellants are vicariously liable as

in the case of those falling under Section 141 of the

Negotiable Instruments Act. The prosecution case on the

other hand is that in their capacity as occupiers the appellant

Ansal brothers had a duty to care for the safety of the

patrons which duty they grossly neglected. The entire

substratum of the case is, therefore, different from the

assumption on which Mr. Jethmalani has built his argument.

The assumption being misplaced, the argument can be no

different.

(vii)Degree and nature of care expected of an

occupier of a cinema building:

92.What is the degree of care expected from the occupier

of a cinema is the next question to which we must advert at

this stage. Two fundamental principles must be noticed at

the threshold while answering that question. The first is that

Page 125 125

the degree and nature of care expected of an occupier

depends upon the fact situation in which the duty to care

arises. The second and equally important principle at

common law is that the degree of care in a given fact

situation would depend upon whether the person to whom

the duty is owed is a contractual visitor, invitee, licensee or

trespasser. Of these the occupier owes the highest degree of

care to a contractual visitor viz. a person who pays

consideration to be present on the premises for some

purpose; whatever that purpose be. At common law there is

an implied term in the contract between the occupier and the

visitor that the occupier’s premises shall be reasonably safe.

The occupier’s duty must be held to have been breached if

any injury is caused to a contractual visitor by any defect in

the premises apart from a latent defect. Winfield &

Jolowicz on Tort (Sixteenth Edition) explains the duty of

an occupier to take care towards different categories of

visitors in the following passage:

Page 126 126

“At common law the duties of an occupier were cast

in a descending scale to four different kinds of

persons and a brief account is necessary to gain a

full understanding of the Act. The highest degree of

care was owed by the occupier to one who entered

in pursuance of a contract with him (for example a

guest in an hotel): in that case there was an implied

warranty that the premises were as safe as

reasonable care and skill could make them. A lower

duty was owed to the “invitee”, that is to say, a

person who (without any contract) entered on

business of interest both to himself and the occupier

(for example a customer coming into a shop to view

the wares): he was entitled to expect that the

occupier should prevent damage from unusual

danger, of which he knew or ought to have known.

Lower still was the duty to the “licensee”, a person

who entered with the occupier’s express or implied

permission but without any community of interest

with the occupier: the occupier’s duty towards him

was to warn him of any concealed danger or trap of

which he actually knew. Finally, there was the

trespasser, to whom under the original common law

there was owed only a duty to abstain from

deliberate or reckless injury.

93.One of the earliest common law decisions regarding

occupier’s liability to visitors is in Mclenan v. Segar (1917)

2 KB 325 where an innkeeper was held liable for injury

caused to a guest while escaping from a fire in the inn. The

fire was caused because there was no proper mechanism for

conveying the smoke and burning soot from the kitchen

Page 127 127

chimney to the atmosphere. The mechanism for conveying

the smoke had been installed in 1910 by an architect

employed by the landlord from whom the innkeeper had

taken the premises on lease. However, the fact that the

defect arose from the architect's negligence did not prevent

liability from being imposed on the innkeeper. The relevant

portion of the judgment is as follows:

“Where the occupier of premises agrees for reward

that a person shall have the right to enter and use

them for a mutually contemplated purpose, the

contract between the parties (unless it provides to

the contrary) contains an implied warranty that the

premises are as safe for that purpose as reasonable

care and skill on the part of anyone can make them.

The rule is subject to the limitation that the

Defendant is not to be held responsible for defects

which could not have been discovered by reasonable

care or skill on the part of any person concerned

with the construction, alteration, repair, or

maintenance of the premises: and the head-note to

Francis v. Cockrell must to this extent be

corrected. But subject to this limitation it matters

not whether the lack of care or skill be that of the

Defendant or his servants, or that of an independent

contractor or his servants, or whether the

negligence takes place before or after the occupation

by the Defendant of the premises.”

94.To the common law duty of care is at times added a

further obligation which too the occupier must discharge in

Page 128 128

order that his duty to care can be said to have been fully

discharged. Such duties are often cast under statutes

enacted by the legislature or in Rules & Regulations framed

in exercise of powers delegated under such enactments.

These additional safeguards against injury to life and limb of

innocent parties who are working in the premises or who visit

such premises, in large numbers, are in public interest and

imply that even the ‘State’ in all its manifestations is

concerned about the safety of those visiting such public

places, be it a cinema hall as in the case at hand or any

other place of entertainment or a place where people go for

any other purpose whether as contractual visitors or

otherwise. The existence of such a statutory duty especially

one that concerns safety of the visitors adds another

dimension to the duty to care to which we shall presently

advert. But before we do so we need to examine whether

any such statutory duty was cast upon the occupier of the

cinema and if so what was the nature of that duty.

Page 129 129

95.The Cinematograph Act, 1952 inter alia regulates

exhibition of films by means of cinematographs. Section 10

of the Act, provides that save as otherwise provided under

Part III of the Act no person shall give an exhibition by

means of a cinematograph elsewhere them in a place

licensed under this part or otherwise than in compliance with

any conditions and restrictions imposed by such license.

Section 12 of the Act stipulates the restrictions on powers of

the licensing Authority and forbids grant of a license except

where he is satisfied that the rules made under Part III have

been substantially complied with and adequate precautions

have been taken in the place in respect of which the license

is to be given to provide for safety of persons attending

exhibitions therein. Section 16 of the Act empowers the

Government to make rules under Part III of the Act, which

part as noticed above also makes safety of persons attending

the exhibition an important requirement. Rule 10(1) of the

Delhi Cinematograph Rules framed in exercise of the said

Page 130 130

power explicitly makes the licensee responsible for the safety

of those attending the exhibition of films. It reads:

“10(1) The licensee shall be responsible for

compliance with the provisions of these rules and

with the conditions of his license, for the

maintenance of the licensed premises at all times

and in all respects in conformity with the standards

prescribed by these rules and for taking all necessary

measures before any cinematograph exhibition is

commenced to ensure the safety of the public and

his employees against fire and other accidents.

(2) The licensee or some responsible person

nominated by him in writing for the purpose shall be

in general charge of the licensed premises and

cinematograph during the whole time where any

exhibition is in progress.”

(emphasis supplied)

96.The rules make further provisions for safety of the

cinema goers. For instance Rules 24 and 37 of the Delhi

Cinematograph Act, 1953 provide for attendants to carry

electric torches for use in emergency and for keeping the fire

appliances in working order and incharge of some person

specially appointed for the purpose. The said two rules may

also be extracted at this stage:

“24. Attendants and all members of the staff

employed in the building during an exhibition shall

Page 131 131

carry electric torches for use in emergency in the

event of failure of the lighting.

37.“Before the commencement of each performance

the cinematograph operator shall satisfy himself that

the fire appliances, intended for use within the

enclosure are in working order, and during the

performance such appliances shall be in the charge

of some person specially appointed for that purpose,

who shall see that they are kept constantly available

for use.”

97.The First Schedule to the DCR 1953 compliance whereof

is essential for grant and renewal deals extensively with

several aspects most if not all of which deal with the safety of

the cinema goers. For instance Para 3 of the schedule deals

with external walls, Para 6 of the schedule deals with the

number of persons to be admitted, Para 7 with seating within

the hall, Para 8 with gangways, Para 9 with stairways, Para

10 with exits, Para 13 with ventilation, Para 15 with Parking,

Para 16 with fire precautions, Para 34(1) with illumination of

exits, passages, corridors and stairways, Paras 35 and 36

with emergency lights.

98.A conspectus of the provisions of the Act and the rules

referred to above shows that the duty to “ensure safety” of

Page 132 132

those entering a cinema hall for watching the exhibition of a

film, is cast upon the occupier of the hall. The use of words

“taking all necessary measures before a cinematograph

exhibition is commenced to ensure safety of the public and

his employees against fair and other accidents” leaves no

manner of doubt that apart from the common law duty to

care, the statutory provisions too cast such an obligation

upon the licence/occupier of the cinema hall.

99.That brings us to the question whether and if so what is

the effect of a statutory obligation to care for the safety of

the visitors to a cinema hall, where a duty to care otherwise

exists under the common law. The answer can be best

provided by a reference to the English decision in Lochgelly

Iron & Coal Co. Ltd. v. M’Mullan, (1934) AC 1. A reading

of this case would suggest that where a duty of care exists

under common law, and this duty is additionally supported

and clarified by statutory provisions, a breach of the

statutory duty would be proof enough of negligence. It would

not be open to the defendant in such a case to argue that

Page 133 133

the harm was not foreseeable, since “the very object of the

legislation is to put that particular precaution beyond

controversy”.

100. The import and significance of the case is explained in

Clerk & Lindsell on Torts (Twentieth Edition) as follows:

“In Lochgelly Iron & Coal Co Ltd v. M'Mullan , the

House of Lords came close to equating an action for

breach of statutory duty with an action in

negligence. Lord Atkin said that all that was

necessary to show “is a duty to take care to avoid

injuring; and if the particular care to be taken is

prescribed by statute, and the duty to the injured

person to take the care is likewise imposed by

statute, and the breach is proved, all the essentials

of negligence are present”. Negligence did not

depend on the Court agreeing with the legislature

that the precaution ought to have been taken,

because the “very object of the legislation is to put

that particular precaution beyond controversy”. On

this approach breach of a statutory duty constitutes

negligence per se, but it applies only to legislation

which is designed to prevent a particular mischief in

respect of which the defendant is already under a

duty in common law. Failure to meet the prescribed

statutory standard is then treated as unreasonable

conduct amounting to negligence, because a

reasonable man would not ignore precautions

required by statute, and the defendant cannot claim

that the harm was unforeseeable because the

legislature has already anticipated it. The statutory

standard “crystallises” the question of what

constitutes carelessness. On the other hand, where

legislation does not deal with circumstances in which

there is an existing common law duty, then, unless

expressly stated, breach of the statute would not

give rise to an action, because the damages may

Page 134 134

greatly exceed the penalty considered appropriate

by the legislature.”

101.Reverting back to the degree and nature of care

expected of an occupier of a cinema hall, we must at the

outset say that the nature and degree of care is expected to

be such as would ensure the safety of the visitors against all

foreseeable dangers and harm. That is the essence of the

duty which an occupier owes to the invitees whether

contractual or otherwise. The nature of care that the

occupier must, therefore, take would depend upon the fact

situation in which duty to care arises. For instance, in the

case of a hotel which offers to its clients the facility of a

swimming pool, the nature of the care that the occupier of

the hotel would be expected to take would be different from

what is expected of an occupier of a cinema hall. In the

former case, the occupier may be expected to ensure that

the pool is safe for use by the guests in the hotel, in that the

depth is safe for those using the diving board if any, that life

guards are on duty when children or other guests are using

Page 135 135

the pool, that immediate medical succor is provided to those

who may meet with any accident, and so on. The nature of

duty is in that sense different from that of cinema

owner/occupier, where all these may not form part of his

duty to care. In the case of a cinema hall the nature of an

occupier’s duty to care may, inter alia, require him to ensure

rapid dispersal from the hall in the event of any fire or other

emergency, and for that purpose to provide suitable

gangways and keep them clear of any obstruction, to provide

proper exits, to keep the exit signs illuminated, to provide

emergency lighting, to provide fire fighting systems, alarm

systems and to employ and keep trained personnel on duty

whenever an exhibition of cinematograph is in progress.

102.An occupier of a cinema would be expected to take all

those steps which are a part of his duty to care for the safety

and security of all those visiting the cinema for watching a

cinematograph exhibition. What is important is that the duty

to care is not a onetime affair. It is a continuing obligation

which the occupier owes towards every invitee contractual or

Page 136 136

otherwise every time an exhibition of the cinematograph

takes place. What is equally important is that not only under

the common law but even under the statutory regimen, the

obligation to ensure safety of the invitees is undeniable, and

any neglect of the duty is actionable both as a civil and

criminal wrong, depending upon whether the negligence is

simple or gross.

103.In the case of gross negligence prosecution and

damages may be claimed simultaneously and not necessarily

in the alternative. We may at this stage refer to a few

pronouncements to illustrate that the duty to care and the

nature of care expected of any person accused of committing

an offence under Section 304A IPC has always been seen in

the fact situations in which the question arose. In

Bhalchandra Waman Pathe v. State of Maharashtra

1968 Mah. L.J. 423 (SC) this Court was dealing with a case

where the regulations framed by the Commissioner of Police,

under the Bombay Police Act, required the driver of car to

look ahead and see whether there was any pedestrian in the

Page 137 137

crossing and if there was one to wait till he crossed the

carriage way. The accused in that case had failed to take

care and do that, resulting in the death of a pedestrian who

was crossing the road. The question that fell for

consideration was whether the driver was rash or negligent.

This Court held that since the speed limit was 35 miles per

hour, and since the accused was driving the car at 35 miles

an hour, there was no rashness on his part in the absence of

any other circumstance showing that he was driving at a

reckless speed. Even so the charge of negligence was held

proved against the accused as he had breached the duty cast

upon him to see whether there was any pedestrian to the

pedestrian crossing. Law, observed this Court, enjoined

upon him and ordinary human prudence required him to do

so. Failure of the accused to exercise that reasonable care

and caution rendered him liable in criminal law to a

conviction under Section 304A of the IPC. This Court

approved the ratio of the decisions in Idu Beg and

Nidamarti cases (supra), that distinguished ‘rashness’ and

Page 138 138

‘negligence’, and held that while rashness implies

recklessness or indifference to consequences, negligence

arises from neglect of a civic duty of circumspection, “which

having regard to all the circumstances out of which the

charge has arisen, it was the imperative duty of the accused

person to have adopted.” Rashness, observed this Court,

was undoubtedly a graver offence.

104.In Bhalchandra @ Bapu and Anr. v. State of

Maharashtra, 1968 (3) SCR 766 , this Court was dealing

with a case in which an explosion in a factory manufacturing

crackers had caused the death of some of the workers and

injured others. The findings recorded by the Courts below

was that the accused had in their possession unauthorized

explosives in contravention of the Act and the Rules and had

committed several breaches of those Rules and the

conditions of the license issued to them. Relying upon the

decisions of this Court in Kurban Hussein’s case (supra)

and Suleman Rahiman Mulani’s case (supra), it was

contended that mere violation of Rules or terms of a licence

Page 139 139

would not make the accused liable for any punitive action

against them. The decisions of this Court in Kurban

Hussein’s and Suleman Rahiman Mulani’s cases (supra)

were distinguished by this Court and the conviction of the

accused under Section 304A IPC upheld in the following

words:

“...The facts of the present case are somewhat

different and distinguishable from those of the

above two cases as will be clear from a close

examination of the material evidence relating to the

substances which were being used in the

manufacture of the fire works etc. in the factory of

the appellants...

xx xx xx

…Although there was no direct evidence of the

immediate cause of the explosion but indisputably

the explosives the possession of which was

prohibited under the notifications issued under the

Act were found in the shops or the premises where

the appellants carried on their business and the

substances that have been mentioned which were of

a highly hazardous and dangerous nature were

apparently being used in the manufacture of the fire

works since they were found at the scene of the

explosion, (vide the evidence mentioned before and

the finding of the trial court and the Additional

Sessions Judge). As stated by Dindeshchandra PW

10 these explosives had sensitive compositions and

even friction or percussion could cause explosion. It

is further proved that in the factory itself where the

explosion took place the persons who were

employed were mostly women who brought their

small children with them and young children below

Page 140 140

the age of 18 had been employed in the

manufacture of the fire works etc. The factory was

situate in close proximity to residential quarters. It

became therefore all the more incumbent on the

appellants to have completely avoided the use of

highly sensitive compositions of the nature

mentioned above.

The decision which is apposite to the present

case is the one recently delivered by this Court on

April 3, 1968 in Rustom Sherior Irani v. State of

Maharashtra. There the chimney of a bakery had

collapsed and 11 persons were killed and certain

persons were injured. The appellant had submitted

no plan for the alteration of the chimney for the

third time and had asked just a mason to remove

the iron pipe which had corroded and to bring the

height of the chimney to 65 feet. The mason had

told him that while the work was being executed it

was unnecessary to completely keep the bakery

closed except during the period the repair work was

being done. After the chimney fell down a number of

officers visited the spot and inspected the bakery.

The Chief Inspector of Boilers was of the opinion

that the cause of the collapse of the chimney was

the explosion which occurred in it because of the

products of combustion and gases not being

permitted to escape freely as a pipe of 6 inches

diameter had been put instead of 12 inches

diameter. It is unnecessary to refer to the detailed

discussion of the evidence. It was established that

the construction of the new chimney had been done

without the advice of a properly qualified person.

The argument raised was on the lines similar to the

one which had been advanced in Kurban Hussein

Mohammedali Rangwalla v. State of Maharashtra. It

was maintained that no negligence on the part of

the appellant had been established and it was on

account of the negligence of the mason that the

chimney had fallen down. This Court was of the view

that the proximate and efficient cause of the deaths

was the negligence of the appellant in choosing a

pipe of 6 inches diameter and asking a mason (who

was apparently not a qualified person) to carry out

Page 141 141

the alterations and also continuing working atleast

one oven there during the period while the

alterations to the chimney were being made.”

105.This Court referred with approval to Queen Empress

v. Bhutan ILR XVI All. 472 and Kamr-ud-din v. King

Emperor 1905 PR 22(Cr) and English decisions in Regina

v. David Dant, 169 English Reports (C.C.) 1517 and

Rex. v. Pittwood (1902) 19 TLR 37 to hold that criminal

negligence can be found on varying sets of circumstances,

and that the tests applied in the said cases including the list

of direct or efficient cause was fully applicable to the case at

hand. It is noteworthy that in Rex. v. Pittwood (supra), the

prisoner was charged with manslaughter on the ground that

he had been negligent in not closing a gate when a train

passed which it was his duty to do with the result that White

who was in a hay cart was killed while the cart was struck by

the train which came when it was crossing the line. The

Court had in that case, held the prisoner liable as it was his

duty to keep the gate shut to protect the public against an

oncoming train. This act of misfeasance was held to

Page 142 142

constitute gross negligence in the discharge of his duty

towards the public crossing the road, amounting to an

offence of manslaughter.

106.In S.N. Hussain’s case (supra), this Court was dealing

with an R.T.C. bus that met with an accident at a manned

railway level crossing which was in the charge of a gateman

whose duty it was to close the gate when the train was

expected to pass by. When the bus reached the level

crossing the gate was open. The accused- bus driver finding

the gate open crossed the meter gauge track when suddenly

a goods train dashed against the bus on the rear side with

the result that the bus was thrown off course causing serious

injuries to several passengers, one of whom was killed in the

accident. The appellant’s defense was that he was neither

rash nor negligent and the accident was unavoidable for he

did not realize that a goods train was passing at the time and

since the gate was open he crossed the railway crossing

absolutely oblivious of the fact that a train was approaching.

Page 143 143

107.The Trial Court accepted that explanation and acquitted

the accused. The High Court reversed the order and

convicted him. This Court relying upon the definition of

criminal rashness and criminal negligence given by Straight

J. in Empress v. Idu beg (supra) and in Bhalchandra

Waman Pathe v. State of Maharashtra (supra) held that

where a railway level crossing was unmanned, it may be

right to insist that the driver of the vehicle should stop the

vehicle, look both ways to see if a train is approaching and

thereafter drive the vehicle after satisfying that there was no

danger in crossing the railway track. Where the level crossing

was protected by a gateman and the gateman opens out the

gate inviting the vehicles to pass, it will be too much to

expect the driver to stop his vehicle and look out for any

approaching train. The Court accordingly acquitted the

appellant of the offence punishable under Section 304A IPC.

108.A conspectus of the decisions quoted above reveals that

an offence under Section 304A IPC may arise under a variety

of circumstances, ranging from reckless driving of vehicles to

Page 144 144

negligent handling of explosives in a factory. In every case,

this Court has been mindful to determine the nature of care

which ought to have been exercised by the accused person in

the context of all the facts and circumstances of that case.

Moreover, this Court has been careful while applying or

distinguishing preceding case law relating to Section 304A to

read each case in the context of its own facts, without

deriving from it any general propositions to be applied in all

cases dealing with the same offence. Therefore, the question

of the nature of care which ought to have been exercised by

the occupiers of Uphaar Cinema, as ordinary prudent

businessmen, must be decided solely on the totality of the

facts and circumstances of the present case.

109.In the case at hand, the claim for compensation has

already been awarded by the High Court and affirmed by this

Court, no matter against the company as the owner of the

cinema hall. Dealing with the question of negligence, this

Court in Municipal Council of Delhi, Delhi v. Association

Page 145 145

of Victims for Uphaar Tragedy and Ors. (2011) 14 SCC

481 observed:

“27. At the outset it should be noted that the

causes for the calamity have been very exhaustively

considered by the High Court and it has recorded a

categorical finding about the negligence and the

liability on the part of the licensee and the DVB. On

the examination of the records, we agree with the

High Court that such a catastrophic incident would

not have happened if the parapet wall had not been

raised to the roof level. If the said wall had not been

raised, the fumes would have dispersed in the

atmospheric air. Secondly if one of the exits in the

balcony had not been blocked by construction of an

owner's box and if the right side gangway had not

been closed by fixing seats, the visitors in the

balcony could have easily dispersed through the

other gangway and exit into the unaffected

staircase. Thirdly if the cars had not been parked in

the immediate vicinity of the transformer room and

appropriate pit had been made for draining of

transformer oil, the oil would not have leaked into

the passage nor would the burning oil lighted the

cars, as the fire would have been restricted only to

the transformer room. Even if one of the three

causes for which the theatre owner was responsible,

was absent, the calamity would not have occurred.

The Licensee could not point out any error in those

findings. Ultimately therefore the contention of the

licensee before us was not to deny liability but only

to reduce the quantum of liability fastened by the

High Court and to increase the share of the liability

of the three statutory authorities.

xxx xxx xxx

57.The licensee argued that the entire liability

should be placed upon the DVB. It was contended

that DVB have installed a transformer of a capacity

of 1000 KV without obtaining the statutory

sanction/approval and without providing all the

safety measures which it was duty bound to provide

Page 146 146

under the relevant Electricity Rules, and therefore,

DVB alone should be responsible for the tragedy.

This contention has no merit. In fact none in the

main hall (ground floor of the theatre) died. Those

on the second floor also escaped. It is only those in

the balcony caught in noxious fumes, which died of

asphyxiation. The deaths were on account of the

negligence and greed on the part of the licensee in

regard to installation of additional seats, in regard to

closing of an exit door, parking of cars in front of

transformer room by increasing parking from 15 to

35 and other acts. We therefore reject the

contention that DVB should be made exclusively

liable to pay the compensation. We have already

held that the Licensing Authority and MCD are not

liable. Therefore, the liability will be 85% (Licensee)

and 15% (DVB).”

110.Mr. Jethmalani, however, argued that the findings

recorded by this Court while dealing with the claim for

payment of damages could not be made a basis for holding

the appellant-Ansal Brothers guilty of an offence punishable

under Section 304A of the IPC, not only because those

findings were not recorded in relation to the appellants but

also because the standard of proof required for award of

compensation was different from that required to prove a

criminal charge. There is merit in that contention. The

standard of proof required being different, simply because

damages have been awarded against the owner of the

Page 147 147

cinema hall can be no reason why the occupier should be

found guilty of gross negligence required to be proved for an

offence under Section 304A. The claim for payment of

compensation was at any rate made and awarded against

the company who owned the cinema hall. This Court cannot

in that view make use of the findings recorded in the

compensation case nor is it otherwise necessary for us to do

so for the evidence adduced at the trial is sufficient for us to

independently determine the question of negligence as also

the criminal liability of the occupier of the cinema arising

from the same.

111.The nature of care in the case of cinema theatres would

depend upon three primary factors that the occupier of the

cinema must at all times bear in mind. The first is that the

cinema hall is an enclosed and necessarily a dark space to

which public at large have access on payment of a price for

the ticket that entitles him to watch the exhibition of a

cinematograph. Such theatres, at any given point of time,

admit large crowds of people whose safety is the obligation of

Page 148 148

the occupier till such time they leave the precincts of the

theatre. The duty to take care regarding the safety of those

admitted to watch an exhibition rests with the occupier who

can and ought to even by the most ordinary standards of

prudence foresee that in the event of anything untoward

happening whether out of a fire incident or otherwise, those

inside the cinema premises can be safe only if they exit from

the same as rapidly as possible. Any delay whether on

account of obstruction in or around the exit points or in the

gangways can be reasonably foreseen by any prudent

businessman running the business of exhibition of

cinematographs to be extremely hazardous and at times

suicidal, with the potential of claiming human lives whether

out of a stampede, panic or asphyxiation in the event of a

fire. It does not require any extra expertise for a cinema

owner or the occupier of a cinema theatre to foresee such

consequences and to take remedial steps to prevent the

same as a part of his duty to care towards those visiting the

theatre.

Page 149 149

112.The second and equally important dimension relevant to

the duty of an occupier of a cinema theatre concerns the

statutory provisions that regulate such duties and make

certain safety measures essential. As previously discussed,

the effect of such statutory provisions where the nature of

care is specifically outlined is that an occupier cannot argue

in defence that any danger arising out of violation or non-

adherence to the provisions of the statute was not

reasonably foreseeable by him. The decision of the House of

Lords in Lochgelly’s case (supra) succinctly explains “the

effect of an additional statutory burden cast upon an

occupier where a common law duty already exists.”

113.The third dimension that must also be constantly borne

in mind while determining whether the occupier had

breached his duty to care towards the safety of the patrons

is “that degree of care which an occupier is required to take

is commensurate with the risk created” as held by Lord

Macmillan in Read v. J. Lyons & Co. Ltd. [1947] AC 156

and an earlier decision in Glasgow Corp v. Muir (1943)

Page 150 150

AC 448. The application of that proposition is appropriate in

the case at hand where the installation of a DVB transformer

within the cinema premises had increased the degree of risk

on account of fire hazard which resultantly enhanced the

degree of care expected of the occupiers in maintenance of

the safety measures for the safety of those inside the

theatre.

114.Summarising the common law duty as enhanced and

reinforced by the provisions of Cinematograph Act, 1952 and

the DCR, 1953, the appellant-Ansal brothers as occupiers of

the cinema were duty bound to take care and such care

included the care to:

(i) To provide a seating arrangement which

ensured easy access to exits to all patrons in the event

of an emergency, wherever they may be seated.

(ii) To provide vertical and horizontal

gangways of appropriate width along all sides of the

auditorium/balcony as well as down the centre of the

Page 151 151

seating accommodation to provide convenient access to

the exits.

(iii) To provide an adequate number of well-

marked exits suitably spaced along both sides of the

auditorium/balcony and along the back thereof, leading

directly into at least two independent thoroughfares so

as to provide speedy egress to the patrons.

(iv) To provide at least two stairways of

adequate width for public use, providing access to every

upper floor in the building.

(v) To ensure that there was no obstruction

in the gangways and other pathways to the exits, as

well as the staircases leading to open space.

(vi) To provide emergency lighting and well-lit

exit signs for use in the event of a power failure or

other emergency in order to guide patrons from out of

the dark.

Page 152 152

(vii) To put in place a working public address

and/or alarm system to warn patrons in the event of

any danger so that they may exit from the premises

without delay or loss of time.

(viii) To provide an adequate number of fire

extinguishers and/or other fire-fighting equipment and

to keep them readily available for use in an emergency

at all times.

(ix) To appoint an adequate number of torch

men and persons in charge of the fire-fighting

equipment to be present throughout the duration of a

film exhibition to aid and guide patrons out of the

theatre as and when such a need arises.

(viii) Whether the accused were negligent and if so,

whether the negligence was gross:

115.The Courts below have concurrently found that the

occupiers of the cinema building had committed several

deviations from the sanctioned building plan apart from

Page 153 153

breaches of statutory provisions. These deviations and

breaches may not have directly contributed to the death of

the victims in the instant case but the same cannot be said

to be wholly irrelevant for purposes of determining whether

or not the occupiers had neglected their duty to care and if

they had, whether such neglect was gross in nature. The

concurrent findings of the Courts below in the nature of

deviations from the sanctioned building plan of the cinema

and the statutory requirements may be enumerated as

under:-

(1)That the occupiers permitted the installation of a DVB

transformer within the cinema premises, although the

building plan did not envisage or permit any such installation.

The occupier’s contention that the installation of the

transformer was under coercion remained unsubstantiated.

(2)That the rear parapet wall behind the transformer room

was constructed upto the ceiling height thereby preventing

smoke rising from the burning transformer oil and the cars

Page 154 154

parked in the parking area from dispersing into the open

atmosphere.

(3)That the stairway leading to the terrace was obstructed

by the installation of a full width door in the staircase landing

as well as construction of a reception counter in the staircase

leading to the terrace by Sarin Associates one of the tenants

inducted by the owners.

(4)That the exhaust fans opened into the staircase rather

than into an open space thereby defeating the purpose of

their installation.

(5)That a homeopathic dispensary was constructed above

the ramp behind the transformer room which was found to

be and described as a fire hazard during MCD inspections

since 1983.

(6)That the staircase around the lift leading to the basement

was being used by M/s Sehgal Carpets by conversion of that

area into an office was an additional hazard and against the

sanctioned plan.

Page 155 155

(7)That the enclosure of the open space adjoining the

transformer room to be used as a ticket counter and the

creation of a glazed verandah next to the Manager’s room

were also deviations from the building plan.

(8)That conversion of the Operator room on the second

floor into an office-cum-bar room too was a deviation.

(9)That letting out of the top floor as office space with

wooden partitions was also a deviation and was pointed out

to be a safety hazard during fire safety inspections.

(10)That out of 22 fire extinguishers seized after the

incident from various parts of the building including the

parking lot and balcony, 10 were empty, 4 were not working

properly while 1 was leaking from the top. This meant that

only 7 of such extinguishers were in working condition.

(11)That neither the Projector Operator nor any other

person present during the exhibition of the cinematograph

was trained in fire fighting as required in DCR 1953.

Page 156 156

116.The above deviations, it was rightly contended by Mr.

Jethmalani did not constitute the causa causans for the

death of the victims in the instant case. Even so two

inferences are clearly available from these deviations namely

(i) That the occupiers of the cinema building were not

sensitive towards the demands of safety of the patrons and

amply showed that the safety of the visitors to the theatre

was a matter of low priority for the occupiers and (ii) That

the deviations raised the level of risk to the safety of the

patrons which in turn required the occupiers to

proportionately raise the level of their vigil and the degree of

care in regard to the safety of those visiting the cinema.

Instead of removing the deviations and the perceived fire

hazards and thereby reducing the risk of exposing the

patrons to avoidable dangers to their safety the occupiers

committed several breaches that directly contributed to the

loss of valuable human lives. For instance both the Courts

have concurrently held the following breaches to have been

established, by the evidence adduced by the prosecution:

Page 157 157

(1)That the cinema did not have any functional Public

Address System necessary to sound an alarm in the

event of a fire or other emergency. The PA system of

the cinema was found to be dysfunctional at the time

of the occurrence hence could not be used to warn or

to sound an alarm to those inside the cinema to exit

from the hall and the balcony.

(2)That the emergency lighting even though an

essential requirement and so also the well-lit exits

stipulated under the DCR 1953 were conspicuous by

their absence. The failure of the electric supply on

account of tripping of the main supply lines

consequently plunged the cinema hall and the

balcony area into darkness leaving those inside the

balcony panic stricken and groping in the dark to find

exits in which process they got fatally exposed to the

carbon monoxide laden smoke that had filled the hall.

(3)That blocking of the vertical gangway along the

rightmost wall and the narrowing of the vertical

Page 158 158

gangway along the right side of the middle exit by

installation of additional seats had the effect of

depriving the patrons of the facility to use the right

side gangway and the gangway along the middle exit

for quick dispersal from the balcony

(4)That the closure of the right side exit in the balcony

area by installation of a private eight-seater box

permanently cut off access to the right side staircase

and thereby violated not only the DCR 1953 but also

prevented the patrons from using that exit and the

right side stairway for quick dispersal from the

balcony.

(5)That the introduction of the new exit in the left wing

of the balcony in lieu of the closed right side exit did

not make up for the breach of Para 10 (4), First

Schedule of DCR 1953 which mandates that exits on

both sides of the auditorium/balcony.

Page 159 159

(6)That failure to introduce fourth exit even when the

total number of seats in the balcony had gone above

300 with the addition of 15 more seats installed in

1980, further compromised the safety requirements

statutorily prescribed under the DCR.

(7)That bolting of the middle entry/exit doors leading

into the foyer obstructed the flow of patrons out of

the balcony exposing them to poisonous gas that

spread into the hall for a longer period then what was

safe for the patrons to survive.

(8)That the absence of any staff members to open the

exit gates and to generally assist the patrons in quick

dispersal from the balcony resulted in the patrons

inhaling poisonous gas and dying because of

asphyxiation.

(9)That the bolting of the door leading from the foyer

into the right side staircase and outside which had to

Page 160 160

be forced open also prevented the quick dispersal

and led to a large number of causalities.

(10)That construction of the refreshment counter near

the exit gate of the first floor and another near the

second floor inhibited free passage of the patrons.

117.That the breaches enumerated above have been proved

by the evidence adduced at the trial is concluded by the

concurrent findings recorded by the two Courts below. There

is, in our opinion, no perversity in the conclusions drawn by

the Courts below on the aspects enumerated above. In the

light of those conclusions it can be safely said that the

occupiers had committed a breach of their duty to care and

were, therefore, negligent.

118.The argument that the incident in question was not

reasonably foreseeable must in the light of what is stated

above be rejected. So also, the argument that since no

untoward incident had occurred for many years prior to the

occurrence that claimed so many lives, the same indicated

Page 161 161

that the occurrence was not reasonable foreseeable deserves

to be mentioned only to be rejected. A similar contention

had in fact been rejected by this Court even in Kurban

Hussein’s case (supra), where this Court said :

“In particular it is urged that this method of

work has been going on for some years and no fire

had broken out and this shows that though there

may have been possible danger to human life from

such fire or combustible matter there was no

probable danger. We are unable to accept this

contention. The fact that there was no fire earlier in

this room even though the process had been going

on for some years is not a criterion for determining

whether the omission was such as would result in

probable danger to human life.”

119.To the same effect is the observation made by this

Court in State through PS Lodhi Colony, New Delhi v.

Sanjeev Nanda (2012) 8 SCC 450 , where this Court held

that just because the accused in that case had driven for

sixteen kilometers without any untoward incident did not by

itself provide him a defence, or prove his innocence.

(viii) Whether the accused were negligent and if so,

whether the negligence was gross:

Page 162 162

120.The question then is whether the negligence of Ansal

brothers-the occupiers of the cinema was so gross so as to

be culpable under Section 304A of the IPC. Our answer to

that question is in the affirmative. The reasons are not far to

seek. In the first place the degree of care expected from an

occupier of a place which is frequented everyday by

hundreds and if not thousands is very high in comparison to

any other place that is less frequented or more sparingly

used for public functions . The higher the number of visitors

to a place and the greater the frequency of such visits, the

higher would be the degree of care required to be observed

for their safety. The duty is continuing which starts with

every exhibition of cinematograph and continues till the

patrons safely exit from the cinema complex. That the

patrons are admitted to the cinema for a price, makes them

contractual invitees or visitors qua whom the duty to care is

even otherwise higher than others. The need for high degree

of care for the safety of the visitors to such public places

offering entertainment is evident from the fact that the

Page 163 163

Parliament has enacted the Cinematograph Act and the

Rules, which cast specific obligations upon the

owners/occupiers/licensees with a view to ensuring the

safety of those frequenting such places. The annual

inspections and the requirements of No Objection Certificates

to be obtained from authorities concerned is yet another

indicator of how important the law considers the safety of the

patrons to be. Any question as to the nature and the extent

of breach must therefore be seen in the backdrop of the

above duties and obligations that arise both under the

common law and the statutory provisions alike. Judged in the

above backdrop it is evident that the occupiers in the present

case had showed scant regard both for the letter of law as

also their duty under the common law to care for the safety

of their patrons. The occupiers not only committed deviations

from the sanctioned building plan that heightened the

dangers to the safety of the visitors but continued to operate

the cinema in contemptuous disregard for the requirements

of law in the process exposing the patrons to a high degree

Page 164 164

of risk to their lives which some of them eventually lost in the

incident in question. Far from taking any additional care

towards safety of the visitors to the cinema the occupiers

asked for permission to place additional seats that further

compromised the safety requirements and raised the level of

risks to the patrons. The history of litigation between the

occupiers on the one hand and the Government on the other

regarding the removal of the additional seats permitted

during national emergency and their opposition to the

concerns expressed by the authorities on account of

increased fire hazards as also their insistence that the

addition or continuance of the seats would not affect the

safety requirements of the patrons clearly showed that they

were more concerned with making a little more money out of

the few additional seats that were added to the cinema in the

balcony rather than maintaining the required standards of

safety in discharge of the common law duty but also under

the provisions of the DCR 1953.

Page 165 165

(ix) Further contentions urged in defence and findings

thereon:

121.Appearing for the appellant Sushil Ansal, Mr. Jethmalani

strenuously argued that the death of 59 persons in the

incident in question was caused by the fire that started from

the DVB transformer, which was poorly maintained and

shabbily repaired by the DVB officials on the morning of 13

th

June, 1997 the date of incident. The causa causans for the

loss of human lives thus was the transformer that caught fire

because of the neglect of the DVB officials who did not even

have a crimping machine to repair the transformer properly.

The absence of an oil soaking pit in the transformer room

was also a reason for the oil to spill out from the transformer

room to spread the fire to the parking area from where

smoke containing lethal carbon monoxide rose, and due to

chimney effect, entered the hall to cause asphyxiation to

those inside the balcony. He urged that there was no

evidence that any death had taken place inside the balcony

which proved that most if not all the patrons sitting in the

Page 166 166

balcony had exited from that area, but died on account of the

poisonous effect of the gas enough to kill human being within

minutes of exposure. Heavy reliance was placed by Mr.

Jethmalani upon the decision of this Court in Kurban

Hussein’s case (supra) in support of his submission that the

causa causans in the case at hand was the fire in the DVB

transformer and not the alleged deviations in the building

plan or the seating arrangement or the obstructions in the

staircase, that led out of the cinema precincts.

122.Mr. Harish Salve, appearing for the CBI and Mr. K.T.S.

Tulsi appearing for the Victims Association contended that

while there was no quarrel with the proposition that death

must be shown to have occurred as a direct, immediate or

proximate result of the act of rashness or negligence, it was

not correct to say that the deaths in this case had occurred

because of the fire in the transformer. It was also not

correct to draw any analogy on facts with any other decided

case including that of Kurban Hussein (supra). Failure of

the victims to rapidly exit from the smoke filled atmosphere

Page 167 167

in the balcony area because of obstructions and deviations

proved at the trial was the real, direct and immediate cause

for the death of the victims in the present case who would

have safely escaped the poisonous carbon monoxide gas only

if there were proper gangways, exits, emergency lights, an

alarm system in working condition and human assistance

available to those trapped inside the hall.

123.We have at some length dealt with the ingredients of an

offence punishable under Section 304A of the IPC in the

earlier part of this judgment. One of those ingredients indeed

is that the rash or negligent act of the accused ought to be

the direct, immediate and proximate cause of the death. We

have in that regard referred to the decisions of this Court to

which we need not refer again. The principle of law that

death must be shown to be the direct, immediate and

proximate result of the rash or negligent act is well accepted

and not in issue before us as an abstract proposition. What is

argued and what falls for our determination is whether the

causa causans in the case at hand was the fire in the DVB

Page 168 168

transformer as argued by the defence or the failure of the

victims to rapidly exit from the balcony area. Two aspects in

this connection need be borne in mind. The first is that the

victims in the instant case did not die of burn injuries. All of

them died because of asphyxiation on account of prolonged

exposure to poisonous gases that filled the cinema hall

including the balcony area. Fire, whatever may have been

its source, whether from the DVB transformer or otherwise,

was the causa sine qua non for without fire there would be

no smoke possible and but for smoke in the balcony area

there would have been no casualities. That is not, however,

the same thing as saying that it was the fire or the resultant

smoke that was the causa causans. It was the inability of the

victims to move out of the smoke filled area that was the

direct cause of their death. Placed in a smoke filled

atmosphere any one would distinctively try to escape from it

to save himself. If such escape were to be delayed or

prevented the causa causans for death is not the smoke but

the factors that prevent or delay such escape. Let us

Page 169 169

assume for instance that even when there are adequate

number of exits, gangways and all other safety measures in

place but the exits are locked preventing people from

escaping. The cause of death would in such case be the act

of preventing people from exiting from the smoke filled hall,

which may depending upon whether the act was deliberately

intended to cause death or unintended due to negligence,

amount to culpable homicide amounting to murder or an act

of gross negligence punishable under Section 304A.

Similarly take a case where instead of four exits required

under the relevant Rules, the owner of a cinema provides

only one exit, which prevents the patrons from exiting rapidly

from the smoke filled atmosphere, the causa causans would

be the negligent act of providing only one exit instead of four

required for the purpose.

124.It would in such circumstances make no difference

whether the fire had started from a source within the cinema

complex or outside, or whether the occupiers of the cinema

were responsible for the fire or someone else. The important

Page 170 170

question to ask is what the immediate cause of the death

was. If failure to exit was the immediate cause of death

nothing further need be considered for that would constitute

the causa causans. That is what happened in the case at

hand. Smoke entered the cinema hall and the balcony but

escape was prevented or at least delayed because of breach

of the common law and statutory duty to care.

125.The second aspect is that while the rash or negligent

act of the accused must be the causa causans for the death,

the question whether and if so what was the causa causans

in a given case, would depend upon the fact situation in

which the occurrence has taken place and the question

arises. This Court has viewed the causa causans in each

decided case, in the facts and circumstances of that case. If

Hatim’s failure to stir the hot wet paint while Rosin was being

poured into it was held to be causa causans, in Kurban

Hussein’s case (supra), the failure of the motorist to look

ahead and see a pedestrian crossing the road even when the

motorist was driving within the speed limit prescribed was

Page 171 171

held to be the causa causans for the death in Bhalchandra

Waman Pathe v. State of Maharashtra (supra). In

Bhalchandra @ Bapu and Anr. v. State of Maharashtra

(supra) where an explosion in a factory manufacturing

crackers claimed lives, this Court found that use of

explosives with sensitive compositions was the immediate

cause of the explosion that killed those working in the

factory. In Rustom Sherior Irani’s case (supra), this Court

found the new chimney of the Bakery was being erected

without the advice of a properly qualified person and that the

factory owner was responsible for neglect that caused the

explosion and not the mason employed by him for erecting

the chimney. The decision in Kurban Hussein’s case

(supra) was cited but distinguished on facts holding that the

choice of the low diameter pipe and engaging a mere mason

not properly qualified for doing the job were the cause of the

accident resulting in causalities.

126. It is in that view, not correct to say that the causa

causans in the present case ought to be determined by

Page 172 172

matching the colours of this case with those of Kurban

Hussein’s case (supra). The ratio of that case lies not in the

peculiar facts in which the question arose but on the

statement of law which was borrowed from the judgment of

Sir Lawrence Jenkins in Emperor v. Omkar Rampratap

(supra). The principle of law enunciated in that case is not

under challenge and indeed was fairly conceded by Mr. Salve

and Mr. Tulsi. What they argued was that when applied to

the facts proved in the present case, the causa causans was

not the fire in the transformer but the breaches committed

by the occupiers of the cinema which prevented or at least

delayed rapid dispersal of the patrons thereby fatally

affecting them because of carbon monoxide laden gas in the

smoke filling the atmosphere. The causa causans indeed

was the closure of the exit on the right side, the closure of

the right side gangway, the failure to provide the required

number of exits, failure to provide emergency alarm system

and even emergency lights or to keep the exit signs

illuminated and to provide help to the victims when they

Page 173 173

needed the same most, all attributable to Ansal brothers, the

occupiers of the cinema. We have, therefore, no hesitation in

rejecting the argument of Mr. Jethmalani, which he

presented with commendable clarity, persuasive skill and

tenacity at his command.

127.Mr. Jethamalani next argued that since the licensing

authority had on the basis of the no objection certificates

issued by the concerned authorities granted and from time to

time renewed the Cinema licence, the appellant-Ansal

brothers were protected under Section 79 of the IPC for they

in good faith believed themselves to be justified in law in

exhibiting films with the seating and other arrangements

sanctioned under the said licence. Reliance in support of

that submission was placed by Mr. Jethmalani, upon the

decision of this Court in Raj Kapoor v. Laxman (1980) 2

SCC 175.

128.Mr. Tulsi on the contrary argued that reliance upon

Section 79 of the IPC and the decision of this Court in Raj

Kapoor’s case (supra) misplaced. He urged that immunity

Page 174 174

from penal action under the provisions of Section 79 of the

IPC was founded on good faith which was totally absent in

the case at hand where the occupiers of the cinema and

even those who were instrumental in the grant and renewal

of the licence and no objections were accused and even

convicted by the Courts below. There was, therefore, no

question of the appellants taking shelter under the licence,

the terms whereof were in any case breached by them to the

misfortune of those who lost their lives in the incident.

129.Section 79 of the IPC may, at this stage, be extracted:

“Section 79. Act done by a person justified, or

by mistake of fact believing himself justified,

by law - Nothing is an offence which is done by any

person who is justified by law, or who by reason of a

mistake of fact and not by reason of a mistake of

law in good faith, believes himself to be justified by

law, in doing it.”

130.A reading of the above shows that nothing would

constitute an offence under the IPC if the act done is:

(i)Justified in law,

Page 175 175

(ii)The act is done by a person who by reason

of a mistake of fact in good faith believes

himself to be justified by law in doing it.

131.In the case at hand the defence relies upon the latter of

the two situations, in which the benefit of penal immunity will

flow if (a) the person doing the act is acting under a mistake

of fact and (b) the person doing the act in good faith believes

himself to be justified by law in doing it. The expression

‘good faith’ is defined in Section 52 of the IPC as under:

“52. “Good faith”.-- Nothing is said to be done or

believed in “good faith” which is done or believed

without due care and attention.”

132.In order that Ansal brothers, occupiers of the cinema

could claim the benefit of Section 79, they were required to

prove that the belief which they harboured about their act

being justified in law was in good faith. The use of expression

‘good faith’ necessarily brings in the question whether the

person concerned had acted with due care and caution. If

they had not, part (b) of Section 79 would have no

application to the case.

Page 176 176

133.The duty to care for the safety of the patrons, we have

explained in the earlier part, was cast upon the Ansal

brothers occupiers of the cinema both in common law as also

in terms of statutory provisions on the subject. We have also

held that the evidence adduced at the trial and the

concurrent findings recorded by the Courts below, have,

established the breach of that duty in several respects. For

instance absence of any Public Address System to warn

those inside the cinema in the event of any emergency was

in the facts and circumstances of the case a part of the duty

to care which was breached by the occupiers. This duty was

a continuing obligation and had to be strictly discharged in

respect of each cinema show conducted in the theatre. The

grant of a licence or its renewal by the licensing authority did

not in any manner relieve the occupiers of that obligation

which was implicit even in the grant and the renewals

thereof. Similarly, the requirement that the cinema must

have emergency lights, fire extinguishers and that the

occupiers must provide help to the patrons in the event of

Page 177 177

any emergency ensuring rapid dispersal from the enclosed

area were obligations that too were implicit in the issue and

renewal of the cinematograph licence. Breach of all these

obligations could not be justified on the ground that a licence

was granted or renewed in favour of the occupiers, licensee

and no matter the duty to care towards safety of the patrons

was neglected by the theatre owners or occupiers. Failures in

the event of a mishap like the one at hand on account of

failure of the occupiers to discharge their legal obligations to

take care for the safety of the patrons cannot be held to be

immune from prosecution simply because a licence to exhibit

the films had been granted or renewed from time to time.

134.The argument that the seating arrangement in the

balcony, the placement of the gangways, the number and

the positioning of the exits, were matters which were

examined and approved by the concerned authority, thereby

entitling the occupiers to a bona fide and good faith belief

that they were on the right side of law, no doubt looks

attractive on first blush but does not stand closer scrutiny.

Page 178 178

The essence of Section 79 is a belief entertained in good faith

about the legitimacy of what is being done by the person

concerned. Absence of good faith is enough to deny to him

the benefit that he claims. Good faith has in turn to be

proved by reference to the attendant circumstances. That is

because good faith is a state of mind which can be inferred

only from the circumstances surrounding the act in question.

The test of ordinary prudence applied to such proved

attendant circumstances can help the Court determine

whether an act or omission was in good faith or otherwise.

Having said that, we would simply recall our findings

recorded earlier that the fundamental obligation and duty to

care at all times rested with the occupiers of the cinema and

the licensee thereof. In the discharge of that duty the

occupiers were not entitled to argue that so long as there

was a license in their favour, they would not be accountable

for the loss of life or limb of anyone qua whom the occupiers

owed that duty. The duty to care for the safety of the

patrons, even independent of the statutory additions made

Page 179 179

to the same, required the occupiers to take all such steps

and measures, as would have ensured quick dispersal from

the cinema building of all the patrons inside the premises in

the event of an emergency. The statutory requirements

were, in that sense, only additional safeguards which in no

way mitigated the common law duty to care, the degree of

such care or the manner in which the same was to be

discharged.

135.That apart, a seating plan, which was in breach of the

statutory provisions and compromised the safety

requirements prescribed under the DCR 1953, could hardly

support a belief in good faith that exhibition of films with

such a plan was legally justified. That is so especially when

the repeal of notification dated 30

th

September, 1976 by

which Uphaar was permitted 100 more seats was followed by

a demand for removal of the additional seats. Instead of

doing so the occupiers/owners assailed that demand in Writ

Petition No.1010 of 1979 before the High Court of Delhi in

which the High Court directed the authorities to have a fresh

Page 180 180

look from the stand point of substantial compliance of the

provisions of the Cinematograph Act. The High Court

observed:

“11. Proposition No. 3: It has been already made

clear above that the relaxation was granted after

considering the public health and the fire hazard

aspects. It is also clear that the very fact that the

relaxation could not be granted after bearing these

main considerations in mind would show that there

was some rule for the extension of the sitting

accommodation in these theatres within the Rules,

though the provision of some of the additional seats

may perhaps have been to some extent contrary to

some of the Rules. It is not necessary for us to

speculate on this question. It is enough to say that

the result of the cancellation of the relaxation is

simply the withdrawal of the relaxation. It does not

automatically mean that all the additional seats

which were installed in the cinema theatres were

contrary to the Rules and must, therefore, be

dismantled without any consideration as to how

many of these seats were in consonance with the

Rules and how many of them were contrary to the

Rules.

12. Our finding on proposition No. 3 is, therefore,

that the Administration will apply their mind to the

additional seats with a view to determine which of

them have contravened which rules and to what

extent. They will bear in mind that the compliance

with the Rules is to be substantial and not rigid and

inflexible.”

136.If while carrying out the above directive, the authorities

concerned turned a blind eye to the fundamental

requirement of the Rules by ignoring the closure of the right

Page 181 181

side exit and gangway prescribed as an essential

requirement under DCR 1953, they acted in breach of the

rules and in the process endangered the safety of the

patrons. We shall presently turn to the question whether the

repeal of the notification had the effect of obliging the

occupier/licensee of the cinema to remove the seats and

restore the gangways and exits as originally sanctioned. But

we cannot ignore the fact that the occupiers/licensee of the

cinema, had opposed the removal of the additional seats

even when the respondents in the writ petition had

expressed concerns about the safety of the patrons if the

additional seats were not removed which removal it is

evident would have by itself resulted in the restoration of the

right side gangway. So also the authorities ought to have

insisted on the restoration of the right side exit by removal of

the eight-seater box which was allowed in the year 1978,

ostensibly because with the right side gangway getting

closed by additional seats occupying that space the

authorities considered the continuance of the right side exit

Page 182 182

to be of no practical use. Withdrawal of relaxation in the

year 1979 ought to have resulted in the reversal of not only

the fixing of additional seats but all subsequent decisions that

proceeded on the basis thereof. It is difficult to appreciate

how even applying the test of substantial compliance the

authorities could consider the theatre to be compliant with

the DCR 1953 especially in so far as the same related to an

important aspect like gangways and exits so very vital for

speedy dispersal from the cinema hall. To add further

confusion to the already compromised safety situation, the

occupiers asked for addition of 15 more seats in the year

1980, which were also allowed, taking the number of seats in

the balcony to 302, thereby, raising the requirement of exits

from 3 to 4 in terms of para 10(2) of the First Schedule to

DCR 1953. This requirement was not relaxable under

proviso to Rule 3(3) of DCR 1953 and yet the authorities

gave a go by to the same in the process, permitting yet

another breach that had the potential and did actually prove

to be a safety hazard for those inside the theatre on the

Page 183 183

fateful day. It is in the above backdrop difficult to accept the

submission of the appellant occupiers that they acted in good

faith and are, therefore, protected against prosecution under

Section 79 of the IPC.

137.There is yet another angle from which the matter can

be examined. Proviso to Section 5A of the Cinematograph

Act, 1952 protects the applicant seeking issue of a

certificate, the distributor and the exhibitor as also any other

person to whom the rights in the film may have passed

against punishment under any law relating to obscenity in

respect of any matter contained in the film for which a

certificate has been granted under clauses (a) or (b) of sub-

section (1) to Section 5A. It reads:

“Provided that the applicant for the certificate, any

distributor or exhibitor or any other person to whom

the rights in the film have passed shall not be liable

for punishment under any law relating to obscenity

in respect of any matter contained in the film for

which certificate has been granted under clause (a)

or clause (b)”

138. The above was added by Act 49 of 1981 with effect

from 1

st

June, 1983. The decision in Raj Kapoor’s case

Page 184 184

(supra) relied upon by Mr. Jethmalani was earlier in point of

time and is distinguishable because the question there

related to the effect of a certificate issued under Section 5A

vis-à-vis the prosecution of the producer, director or the

holder of certificate for obscenity punishable under Section

292 of the IPC or any other law for that matter. The addition

of proviso to Section 5A (1) (supra) in any case sets the

controversy at rest and grants immunity to the person

exhibiting a film to the public in accordance with the

certificate issued by the board. No such protection against

prosecution is, however, available to the holder of a cinema

licence against prosecution for a rash or negligent act

resulting in the death of anyone visiting the cinema and

punishable under Section 304A of the IPC. In the absence of

any such protection against prosecution for rash or negligent

act resulting in death, unlike the protection that the statute

itself grants against prosecution for obscenity, is a

circumstance that strongly suggests that no such protection

was intended to be given to a licence holder against any such

Page 185 185

prosecution. The argument that absence of any such

protection notwithstanding the occupiers/owners of the

cinema may be protected in terms of Section 79 of the IPC is

obviously founded on the plea that the appellants were under

a “mistake of fact” when they in good faith believed

themselves to be justified in law in exhibiting films in the

theatre, by reason of a license issued under the Act. The plea

that the appellants were under a ‘mistake of fact’, however,

remains unsubstantiated. The concept of mistake of fact has

been explained by Russel on Crime in the following words:

“When a person is ignorant of the existence of

relevant facts, or mistaken as to them, his conduct

may produce harmful results which he neither

intended nor foresaw.

xxx xxx xxx

Mistake can be admitted as a defence provided (1)

that the state of things believed to exist would, if

true, have justified the act done, and (2) the

mistake must be reasonable, and (3) that the

mistake relates to fact and not to law.”

139.Ratanlal and Dhirajlal in their book “Law of

Crimes” (23

rd

Edn.) Page 199 similarly explains the term

“mistake” in the following words:

Page 186 186

“'Mistake' is not mere forgetfulness. It is a slip

'made, not by design, but by mischance'. Mistake, as

the term is used in jurisprudence, is an erroneous

mental condition, conception or conviction induced

by ignorance, misapprehension or misunderstanding

of the truth, and resulting in some act or omission

done or suffered erroneously by one or both of the

parties to a transaction, but without its erroneous

character being intended or known at that time.

It may be laid down as a general rule that an

alleged offender is deemed to have acted under that

state of things which he in good faith and on

reasonable grounds believed to exist when he did

the act alleged to be an offence.”

140.In the case at hand, the appellants-occupiers of the

cinema, have not been in a position to identify the facts qua

which they were under a mistake nor is it clear as to how any

such mistake of fact would have justified their act in law,

leave alone satisfy the third requirement of the mistake of

fact being reasonable in nature. The three tests referred to

by Russel in the passage extracted above are not, therefore,

satisfied in the case at hand to entitle the appellant occupiers

to the benefit of Section 79 of the IPC.

141.Mr. Jethmalani next contended that the withdrawal of

notification dated 30

th

September, 1976 did not have the

effect of creating an obligation for the occupiers of the

Page 187 187

cinema to remove the additional seats that had been

permitted under the said notification. In support of that

submission, he placed reliance upon Section 6 of the General

Clauses Act, 1897 and two decisions of this Court which

according to him support the proposition that the principles

underlying Section 6 are attracted even to notifications no

matter Section 6 does not in terms apply. Elaborating his

submission Mr. Jethmalani contended that the repeal of an

enactment does not affect the previous operation of any such

enactment or anything duly done or suffered thereunder. On

the same principle withdrawal of notification dated 30

th

September, 1976 could not, according to Mr. Jethmalani,

affect the previous operation of the said notification or

anything duly done or suffered thereunder. This, contended

Mr. Jethmalani, implied that additional seats permitted under

notification dated 30

th

September, 1976 could continue in the

theatre, no matter the notification under which they were

permitted was withdrawn.

Page 188 188

142.We regret our inability to accept that line of reasoning.

We say so for reasons more than one. In the first place

Section 6 of the General Clauses Act does not, in our opinion,

have any application to repeal of any rule, notification or

order. The provision makes no reference to repeal of a rule,

notification or order. It reads:

“6. Effect of repeal.- Where this Act, or any

1[ Central Act] or Regulation made after the

commencement of this Act, repeals any enactment

hitherto made or hereafter to be made, then, unless

a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the

time at which the repeal takes effect; or

(b) affect the previous operation of any enactment

so repealed or anything duly done or suffered

thereunder; or

(c) affect any right, privilege, obligation or liability

acquired, accrued or incurred under any

enactment so repealed; or

(d) affect any penalty, forfeiture or punishment

incurred in respect of any offence committed

against any enactment so repealed; or

(e) affect any investigation, legal proceeding or

remedy in respect of any such right, privilege,

obligation, liability, penalty, forfeiture or

punishment as aforesaid;

and any such investigation, legal proceeding or

remedy may be instituted, continued or enforced,

and any such penalty, forfeiture or punishment may

Page 189 189

be imposed as if the repealing Act or Regulation had

not been passed.”

143.It is manifest from a reading of the above that the

provision applies only to repeal by (i) the General Clauses Act

or (ii) by a Central Act or (iii) by Regulation of any enactment

hither to make or hereinafter to be made. The expressions

“Central Act” and “Regulation” appearing in Section 6 have

been defined in Sections 3(7) and 3(50) of the General

Clauses Act, 1897 respectively as under:

“3. Definitions. – In this Act, and in all Central Acts

and Regulations made after the commencement of

this Act, unless there is anything repugnant in the

subject or contexts, -

xxx xxx xxx

(7) “Central Act” shall means an Act of Parliament,

and shall include –

(a) an Act of the Dominion Legislature or of the

Indain Legislature passed before the commencement

of the Constitution, and

(b) an Act made before such commencement by the

Governor General in council or the Governor

General, acting in a legislative capacity.

xxx xxx xxx

(50) “Regulation” shall mean a Regulation made

by the President [under article 240 of the

Constitution and shall include a Regulation made by

the President under article 243 thereof and] a

Page 190 190

Regulation made by the Central Government under

the Government of India At, 1870, or the

Government of India Act, 1915, or the Government

of India Act, 1935."

.

144.There is in the light of the above no gainsaying that

Section 6 does not have any application to, for instance, a

rule, a notification or a circular whether statutory or

otherwise. It is confined to repeal of any enactment already

in existence or made after the enactment of the General

Clauses Act, 1897 by the General Clauses Act, 1952, or a

Central Act or Regulation within the meaning of those terms

as defined in Sections 3(7) and 3(50).

145.Secondly, because the decisions in State of Orissa

and Ors. v. Titaghur Paper Mills Co. Ltd. and Anr.

(1985) Supp SCC 280 and Union of India v. Glaxo India

Ltd. and Anr. (2011) 6 SCC 668 do not extend the

application of Section 6 to statutory notifications as was

sought to be argued by Mr. Jethmalani. In Titaghur Paper

Mills Co. Ltd.’s case (supra), this Court was dealing with the

supersession of notifications issued under the Orissa Sales

Page 191 191

Tax Act on the tax liability accrued under the repealed

notification. Although this Court held that a tax liability that

was already incurred under the repealed notifications would

remain unaffected by the repeal of the notification the

decision does not go to the extent of holding that Section 6

of the General Clauses Act or the principle underlying the

said provisions would be attracted to such repeal. The

reasoning for the conclusion of this Court, it appears, is

based on first principles more than Section 6 or its relevance

to the question of repeal of a notification. This is evident

from the following passage from the said decision:

“66…By repealing and replacing the previous

notifications by other notifications, the result was

not to wipe out any liability accrued under the

previous notifications. If this contention of the

Respondents were to be accepted, the result would

be startling. It would mean, for example, that when

a notification has been issued under Section 5(1)

prescribing a rate of tax, and that notification is

later superseded by another notification further

enhancing the rate of tax, all tax liability under the

earlier notification is wiped out and no tax can be

collected by the State Government in respect of any

transactions effected during the period when the

earlier notification was in force.”

Page 192 192

146.In Glaxo India Ltd.‘s case (supra), all that this Court

declared was that the effect of a superseding notification

would have to be determined on a proper construction of the

notification itself and not by any single principle or legal

consideration. The decision mentioned Section 6 of the

General Clauses Act only to state that it would not apply to

notifications. This is evident from the following passage from

the said decision:

“39…The view of this Court in some of the decisions

is that the expression "supersession" has to be

understood to amount 'to repeal' and when

notification is repealed, the provisions of

Section 6 of the General Clauses Act would not apply

to notifications. The question whether statutory

obligations subsist in respect of a period prior to

repeal of a provision of a Statute or any subordinate

legislation promulgated thereunder has to be

ascertained on legal considerations apposite to the

particular context. The matter is essentially one of

construction. Such problems do not admit of being

answered on the basis of any single principle or legal

consideration.”

(emphasis supplied)

147.Thirdly, because the effect of withdrawal of the

notification in the instant case may have to be seen and

determined on first principles. We find it difficult to

Page 193 193

appreciate how the power to withdraw a notification, the

existence whereof was not disputed by Mr. Jethmalani would

remain meaningful and could be effectively exercised if the

withdrawal of such a notification was to leave the benefit

under the notification flowing in perpetuity. The notification

in question permitted additional seats to be fixed in

relaxation of the rules and, if the argument of Mr. Jethmalani

was to be accepted, such relaxation and fixation of seats

would become irreversible even when the Government could

legitimately exercise the power to recall such a relaxation.

This would be anomalous and would have the effect of

emasculating the power of recall itself. The power would be

meaningful and so also its exercise, only if the same could

undo whatever had already been done under it prospectively.

Such an interpretation would not only recognize the power of

withdrawal but also protect the previous operation of the

repealed notification no matter limited to the extent that the

occupiers had benefitted by fixation of such seats and

Page 194 194

collection of the price of the tickets sold upto the date of

withdrawal.

148.Last but not the least is the fact that the question

whether withdrawal of notification dated 30

th

September,

1976 would have the effect of obliging the occupiers to

remove the additional seats could and ought to have been

argued before the High Court in the writ petition filed by the

occupiers/owners of cinema hall, in Isherdas Sahni & Bros

and Anr. v. The Delhi Administration and Ors. AIR

1980 Delhi 147. No such contention was, however, urged

before the High Court in support of the challenge to the

demand for the removal of the seats which demand was

based entirely on assumption that the withdrawal of the

notification has had the effect of obliging the

owners/occupiers to restore status quo ante. The High Court

took the view that recall of the notification would call for a

review qua each cinema hall to determine whether the

continuance of the seats was substantially compliant with

DCR, 1953. The High Court accordingly directed the

Page 195 195

authorities concerned to have a fresh look applying the test

of substantial compliance while determining the liability of

the owners/occupiers to remove the additional seats. The

occupiers accepted that direction. An exercise was

accordingly undertaken though in our view, unsatisfactorily,

for the authorities concerned failed to look into the safety

requirements which ought to have been given foremost

importance in any such process. The least, therefore, that

can be said is that the argument that no obligation arose to

remove the additional seats by reason of the repeal of the

notification dated 30

th

September, 1976 is untenable not only

on merits, but also because the same is no longer available

in view of what has been stated above, and the fact that the

question stands concluded by the judgment of this Court in

Isherdas Sahni’s case (supra).

149.We may at this stage deal with a threefold submission

made by Mr. Jethmalani. He contended that the appellant

Ansal Brothers were entitled to assume that the licensing

authority had done its duty and satisfied itself about the

Page 196 196

premises being adequately safe for those visiting the same.

Reliance in support of the submission was made by Mr.

Jethmalani upon the English decisions in Green v.

Fibreglass Ltd. 1958 (2) QBD 245, Gee v. The

Metropolitan Railway Company 1873 VIII Q.B. 161 and

Grant v. Sun Shipping Co. Ltd. and Anr. 1948 AC 549.

150.The second limb of Mr. Jethmalani’s contention was that

having delegated their duties to persons like R.M. Puri whole-

time Director and the Managers employed for ensuring safety

of those visiting the cinema, the Ansal brothers were entitled

to assume that those incharge of their duties would faithfully

and effectively discharge the same in a prudent manner.

The employers of such employees could not be held

vicariously liable under the IPC for the failure of the latter to

do what was enjoined upon them in terms of the duties

attached to their employment. Support for that proposition

was drawn by Mr. Jethmalani from the English decision in

Hazeldine v. C.A. Daw and Son Ltd. and Ors. (1941) 2

KB 343. The third limb of the argument of the learned

Page 197 197

counsel was that having convicted and sentenced the

gatekeeper for the offence punishable under Section 304-A,

the High Court could not hold the Ansals guilty or punish

them for the same offence since there is no vicarious liability

in criminal law.

151.In Gee v. The Metropolitan Railway Company

(supra), a train passenger leant on the door of a railway

carriage believing it to have been properly fastened, when in

fact it was not. This resulted in the door flying open and the

passenger getting thrown out of the carriage. The question

was whether there was any contributory negligence on the

part of the train passenger. The Court held that the

passenger was entitled to assume that the door had been

properly fastened and that the accident had been caused by

the defendants’ negligence. The Court observed:

“Because I am of opinion that any passenger in a

railway carriage, who rises for the purpose either of

looking out of the window, or dealing with, and

touching, and bringing his body in contact with the

door for any lawful purpose whatsoever, has a right

to assume, and is justified in assuming, that the

door is properly fastened; and if by reason of its not

Page 198 198

being properly fastened his lawful act causes the

door to fly open, the accident is caused by the

defendants' negligence.”

152.The above decision was affirmed by the House of Lords

in Grant v. Sun Shipping Co. Ltd. and Anr. (supra) where

an injury was caused to a stevedore on a ship when he

wrongly assumed that no hatch was left uncovered and unlit

and therefore fell into the hatch. The Court in that case also

was concerned with the question of contributory negligence.

It is noteworthy that the Court qualified the principle stated

in Gee v. The Metropolitan Railway Company’s case

(supra) by holding that a prudent man would guard against

the possible negligence of others when experience shows

such negligence to be common.

153.In Green v. Fibreglass Ltd. (supra), a cleaning lady

was injured due to faulty wiring on the premises where she

was invited to work. It was held that the occupiers of the

premises should be taken to have discharged their duty to

the plaintiff as inviters by employing competent electrical

Page 199 199

contractors and by taking the precaution of rewiring the

premises before they began to occupy the same. If some act

was to be performed which called for special knowledge and

experience which the inviter could not be expected to

possess, he fulfilled his duty of care by employing a qualified

and reputable expert to do the work.

154.It appears from a reading of the above cases that the

principle that an occupier is entitled to assume that others

have done their duty is applicable, provided that experience

has not revealed to him that the negligence of others is

common, nor did he at any time have reason to believe that

his premises was unsafe. It is difficult for the occupiers in the

present case to argue that they did not have reason to

believe that the premises was unsafe, given the occurrence

of a similar fire in 1989, as well as the number of occasions

on which defects in their premises had been pointed out to

them. Moreover, although Section 12 of the Cinematograph

Act did require the licensing authority to take in to account

substantial compliance with the rules, as well as existence of

Page 200 200

adequate safety precautions in the premises, Rule 10(1) of

DCR, 1953 unambiguously cast the responsibility for

maintaining such compliance and safety upon the occupier.

The Act and Rules are silent regarding the consequences to

be faced by a licensing authority who does not fulfill his duty,

however, Section 14 of the Cinematograph Act imposes a

penalty on the occupier of a licensed premises who violates

the conditions of the cinema license. One such condition in

the present case was compliance with the First Schedule of

the DCR, 1953. Therefore, this is not a situation where the

law treats the occupier as an ignorant person who requires

experts to verify the safety of his premises. Rather, the Act

places an independent obligation upon him to maintain

compliance with the rules, irrespective of the assessment of

the public authorities.

155.It is, therefore, difficult to accept the argument that the

occupiers in the present case blindly accepted the

assessment of the inspecting and licensing authorities. If that

Page 201 201

were to be true, they ought not to have resisted the removal

of 43 extra seats in the balcony as ordered by the licensing

authority pursuant to the withdrawal of the 1976 notification,

and they ought not to have failed to cure the defects in their

premises pointed out by the MCD after the inspection in

1983.

156.Reliance by Mr. Jethmalani upon the decision in

Hazeldine’s case (supra) to support the second limb of his

argument is also, in our view, misplaced. That was a case,

where the landlord had employed a firm of engineers to

adjust, clean and lubricate the machinery of the lift once

every month, to repack the glands when needed and to

report to him if any repairs were needed. An employee of

the engineers engaged for the purpose repacked one of the

glands but failed to replace it properly thereby causing the

gland to fracture when the lift was worked and an accident in

which the plaintiff was injured. The Court held that the

landlord had discharged his obligation to keep the lift

reasonably safe by employing a competent firm of engineers.

Page 202 202

The owner of the lift was not, observed the Court, aware of

any defect or danger in operating the lift.

157.The fact situation in the case at hand is entirely

different. Here the duty to care for the safety of the invitees

lies upon the occupiers not only under the common law but

even under the statutory enactment. More importantly, the

occupiers have, as seen in the earlier parts of this judgment,

been aware at all material times, of the statutory

requirements and deviations which were repeatedly pointed

out by the authorities concerned as a safety hazard for the

patrons of the cinema theatre. The staff employed by the

occupiers had no role to play in these deviations or their

removal. There is nothing on record to suggest that the

occupiers had issued instructions to the staff to have the

deviations and breaches removed and/or corrected, or that

those instructions were not complied with by the latter

resulting in the fire incident that claimed human lives. Unlike

in Hazeldine’s case (supra), the occupiers had not done all

that could and ought to have been done by them to avert

Page 203 203

any tragedy in connection with the use of an unsafe premises

frequented by the public for entertainment.

158.Equally untenable is the argument that since the

gatekeeper of the balcony has been found guilty and

sentenced to imprisonment, the occupiers must be held to be

innocent. The argument is an attempt to over-simplify the

legal position ignoring the factual matrix in which the

prosecution was launched and the appellants found guilty. If

the appellants have indeed committed gross negligence

resulting in the death of a large number of innocents, they

cannot argue that just because one of those found to be

equally rash or negligent had been convicted for the very

same offence they must be held to be not at fault.

159.Mr. Jethmalani next argued that the charges framed

against the accused-appellants, Sushil and Gopal Ansal were

defective inasmuch as the same did not specify the days or

period when the offence took place nor even indicate the

statutory provisions, rules and regulations allegedly violated

by the appellants or accuse the appellants of gross

Page 204 204

negligence which alone could constitute an offence under

Section 304A IPC. These defects, contended the learned

counsel, had caused prejudice to the appellants in their

defence and ought to vitiate the trial and result in their

acquittal. A similar contention, it appears, was urged by the

appellants even before the High Court who has referred to

the charges framed against the appellants at some length

and discussed the law on the point by reference to Sections

211, 215 and Section 464 of the Cr.P.C. to hold that the

charges were reasonably clear and that no prejudice in any

case had been caused to the appellants to warrant

interference with the trial or the conviction of the appellants

on that ground. Reliance in support was placed by the High

Court upon the decision of this Court in Willie (William)

Slaney v. State of Madhya Pradesh (AIR 1956 SC 116)

and several later decisions that have reiterated the legal

position on the subject. There is in our opinion no error in

the view taken by the High Court in this regard. Section 464

of the Cr.P.C. completely answers the contention urged on

Page 205 205

behalf of the appellants. It in no uncertain terms provides

that an error, omission or irregularity in the charge including

any misjoinder of charges shall not invalidate any sentence

or order passed by a Court of competent jurisdiction unless

in the opinion of a Court of appeal, confirmation or revision a

failure of justice has in fact been occasioned thereby. The

language employed in Section 464 is so plain that the same

does not require any elaboration as to the approach to be

adopted by the Court. Even so the pronouncements of this

Court not only in Slaney’s case (supra) but in a long line of

subsequent decisions place the matter beyond the pale of

any further deliberation on the subject. See K.C. Mathew

v. State of Travancore-Cochin AIR 1956 SC 241,

Gurbachan Singh v. State of Punjab AIR 1957 SC 823,

Eirichh Bhuian v. State of Bihar AIR 1963 SC 1120,

State of Maharashtra v. Ramdas Shrinivas Nayak AIR

1982 SC 1249, Lallan Rai v. State of Bihar (2003) 1

SCC 268 and State (NCT of Delhi) v. Navjot Sandhu

(2005) 11 SCC 600.

Page 206 206

160.In Slaney’s case (supra) Vivian Bose, J. speaking for

the Court observed:

“5...What it narrows down to is this. Is the charge to

be regarded as a ritualistic formula so sacred and

fundamental that a total absence of one, or any

departure in it from the strict and technical

requirements of the Code, is so vital as to cut at the

root of the trial and vitiate it from the start, or is it

one of many regulations designed to ensure a fair

and proper trial so that substantial, as opposed to

purely technical, compliance with the spirit and

requirements of the Code in this behalf is enough to

cure departures from the strict letter of the law ?

6. Before we proceed to set out our answer and

examine the provisions of the Code, we will pause to

observe that the Code is a code of procedure and,

like all procedural laws, is designed to further the

ends of justice and not to frustrate them by the

introduction of endless technicalities. The object of

the Code is to ensure that an accused person gets a

full and fair trial along certain well-established and

well-understood lines that accord with our notions of

natural justice. If he does, if he is tried by a

competent court, if he is told and clearly

understands the nature of the offence for which he

is being tried, if the case against him is fully and

fairly explained to him and he is afforded a full and

fair opportunity of defending himself, then, provided

there is substantial compliance with the outward

forms of the law, mere mistakes in procedure, mere

inconsequential errors and omissions in the trial are

regarded as venal by the Code and the trial is not

vitiated unless the accused can show substantial

prejudice. That, broadly speaking, is the basic

principle on which the Code is based...”

161.To the same effect are the subsequent decisions of this

Court to which we have referred to above. Applying the test

Page 207 207

laid down in the said cases we have no hesitation in holding

that there was nothing fundamentally wrong with the

charges framed against the appellants nor have the

appellants been able to demonstrate that they suffered any

prejudice on account of the alleged defects. The High Court

has in our opinion taken a correct view on the question urged

before which does not call for any interference.

162.It was also contended by Mr. Jethmalani that all such

incriminating circumstances as have been used against the

appellants were not put to the accused. The High Court has

while dealing with a similar contention urged before it

carefully examined the case of each appellant and found no

merit in them. That apart we have been taken through the

statements made by the accused under Section 313 Cr.P.C.

and find that the same have comprehensively put the

circumstances appearing against the appellants to them and

thereby given them an opportunity to explain the same.

Besides, so long as there is no prejudice demonstrated by

the appellants on account of any deficiency in the

Page 208 208

statements, there is no question of this Court interfering with

the concurrent judgments and orders of the Courts below.

163.We may at this stage simply refer to the decision of this

Court in Jai Dev v. State of Punjab AIR 1963 SC 612 ,

where P.B. Gajendragadkar, J. (as His Lordship then was)

speaking for a three-Judge Bench explained the purpose

underlying the statement under Section 342 (now Section

313 Cr.P.C.) in the following words:

“The ultimate test in determining whether or not the

accused has been fairly examined under Section 342

would be to enquire whether, having regard to all

the questions put to him, he did get an opportunity

to say what he wanted to say in respect of

prosecution case against him. If it appears that the

examination of the accused person was defective

and thereby a prejudice has been caused to him,

that would no doubt be a serious infirmity.”

164. We may also refer to the decision of this Court in

Shivaji Sahabrao Bobade v. State of Maharashtra

(1973) 2 SCC 793 , where this Court declared that an

omission in the statement under Section 313 does not ipso

facto vitiate the proceedings and that prejudice occasioned

Page 209 209

by such defect must be established by the accused. The

following passage is in this regard apposite:

“It is trite law, nevertheless fundamental, that the

prisoner’s attention should be drawn to every

inculpatory material so as to enable him to explain

it. This is the basic fairness of a criminal trial and

failures in this area may gravely imperil the validity

of the trial itself, if consequential miscarriage of

justice has flowed. However, where such an

omission has occurred it does not ipso facto vitiate

the proceedings and prejudice occasioned by such

defect must be established by the accused. In the

event of evidentiary material not being put to the

accused, the court must ordinarily eschew such

material from consideration. It is also open to the

appellate court to call upon the counsel for the

accused to show what explanation the accused has

as regards the circumstances established against

him but not put to him and if the accused is unable

to offer the appellate court any plausible or

reasonable explanation of such circumstances, the

Court may assume that no acceptable answer exists

and that even if the accused had been questioned at

the proper time in the trial court he would not have

been able to furnish any good ground to get out of

the circumstances on which the trial court had relied

for its conviction. In such a case, the Court proceeds

on the footing that though a grave irregularity has

occurred as regards compliance with Section 342

Cr.P.C. the omission has not been shown to have

been caused prejudice to the accused.”

165.To the same effect is the decision of this Court in State

(Delhi Admn.) v. Dharampal (2001) 10 SCC 372 and

Bakhshish Singh v. State of Punjab AIR 1967 SC 752.

Page 210 210

166. Suffice it to say that the circumstances appearing

against the accused persons have been elaborately put to

them under Section 313 Cr.P.C. The contention that the

appellants suffered any prejudice on account of a given

circumstance not having put to them has, in our opinion, no

merit and is accordingly rejected.

166.In the light of the above discussion, we see no reason

to interfere with the judgments and orders of the Courts

below in so far as the same have convicted appellant-Ansal

brothers for offences under Sections 304A, 337, 338 read

with Section 36 IPC and Section 14 of the Cinematograph

Act, 1952.

167.As regards the conviction of Divisional Fire Officer, H. S.

Panwar (A15) assailed in Criminal Appeal No.599/2010, the

trial Court has on a reappraisal of the evidence adduced at

the trial found that the said accused had acted in a grossly

rash and negligent manner in issuing No Objection

Certificates without carrying out a proper inspection of the

cinema hall from the fire safety angle, resulting in issue of

Page 211 211

temporary permits in favour of the theatre which directly

resulted in the death of 59 persons in the incident in

question. The trial Court observed:

“Accused H.S. Panwar acted with gross negligence

by recommending ‘No Objection certificate’ without

fulfilling requirements of law and without carrying

out inspection of the cinema hall building from fire

safety point of view, resulting in the issuance of

temporary permits and on the basis of the same

exhibition of films, which action resulted into the

death of the patrons inside the cinema hall on the

day of the incident. The accused committed breach

of duty by omitting to point out the fire hazards and

deficiencies in fire fighting measures in the cinema

building, which act amounts to culpable negligence

on his part. The act of accused can also be

described as ‘culpable rashness’ since being an

officer from the office of Chief Fire Officer, he was

conscious that the intended consequences would

surely ensure. The accused by, omitting to do his

lawful duties committed gross negligence and

rashness which was the direct and proximate cause

of the death of 59 persons. Accordingly, the

accused H.S. Panwar is held guilty for the offence

under Section 304A IPC read with section 36 IPC.

The accused is also held guilty for the injury to the

patrons in the cinema hall for the offence under

section 337 and 338 IPC.”

(emphasis supplied)

168.The above finding was affirmed by the High Court in the

following words with a reduction in his sentence:

“… Concerning accused H.S. Panwar, the negligent

and careless inspection carried out by him has been

Page 212 212

held to be a significant and direct cause of the

accident, which took away lives of innocent people,

and grievously injured several others. His vigil could

have prevented the fire clearance certificate. If he

had displayed the same zeal that he did in

November, 1996, when the inspection report did not

yield a no objection? (sic) There would have been a

greater scrutiny of the fire safety norms. Instead,

he certified that fire safety norms had been

complied with, whereas in actuality they were not.

No doubt, he has served the Delhi Fire Service for a

long time; according to the trial court judgment, he

was 68 years when the impugned judgment was

pronounced. He is also a recipient of

commendations. On a conspectus of all these

circumstances, the court is of the opinion that ends

of justice would be served if the sentence is reduced

to rigorous imprisonment for one year and

Rs.5000/- under section 304-A. The default

sentence in his case is also modified to simple

imprisonment for two months. The conviction by

the trial court is therefore maintained and to the

above extent….”

169.Mr. Mehrotra, learned counsel for the appellant H.S.

Panwar made a two-fold submission in support of his appeal.

Firstly he argued that according to the standard practice

prevalent in the Fire Department the appellant H.S. Panwar

then Divisional Fire Officer was required to give a report in

terms of the proforma prescribed for the purpose. This was

according to the learned counsel evident from the deposition

of Shri G.D. Verma (PW 37) the then Chief Fire Officer. He

Page 213 213

urged that even earlier inspections had been made on the

basis of the very same proforma, which was correctly filled

up by the appellant furnishing the requisite information

demanded in the proforma.

170.Secondly it was contended by Mr. Mehrotra that the

Victims’ Association had claimed compensation from the

management of the theatre as well as MCD Delhi Fire

Service, in which case the High Court had exonerated Delhi

Fire Service. That finding had attained finality as the same

was not challenged by the Association. This, argued the

learned counsel, implied that the Fire Service or its officers

were not at fault for the occurrence in question, a

circumstance which could and ought to be kept in view.

171.There is, in our opinion, no merit in either one of the

submissions made by Mr. Mehrotra. Clearance by the Fire

Department was, it is common ground, an essential pre-

requisite for the grant of a license, its renewal or the issue of

a temporary permit for exhibition of the films in any cinema

hall. This clearance could be granted only if the officers

Page 214 214

concerned were fully satisfied after an inspection of the

cinema premises that the same was indeed safe for use as a

place for exhibition of cinematographs. Anyone discharging

that important function had to be extremely vigilant as, any

neglect on his part could allow an unsafe premises being

used resulting in serious consequences as in the present

case. Far from being vigilant and careful about the

inspection, H.S. Panwar grossly neglected the duty cast upon

him, resulting in the issue of temporary permits, which

contributed to the causa causans of the incident. It is in the

circumstances no defence for the appellant-H.S. Panwar to

plead that he was asked to report only according to the

proforma furnished to him. As a senior and experienced

officer in the Fire Service Department, he ought to have

known the purpose of his inspection and the care he was

required to take in the interest of the safety of hundreds, if

not thousands of cine-goers who throng to such public places

for entertainment. In as much as he failed to do so, and

issued a certificate which compromised the safety

Page 215 215

requirements and endangered human lives resulting directly

in the loss of a large number of them, he has been rightly

found guilty.

172.So also the second limb of Mr. Mehrotra’s submission is

in our opinion without any substance. The question whether

the appellant H.S. Panwar was grossly negligent resulting in

the loss of valuable human lives has to be determined on the

basis of the evidence on record in the present case and not

on the basis of findings which the High Court may have held

in a summary proceedings for payment of compensation to

the victims and their families recorded under Article 226 of

the constitution. The evidence in the case at hand has been

appraised by the two Courts below and found to establish the

charge of negligence against the appellant. There is, in our

opinion, no compelling reason for us to take a different view

in the matter especially when we do not see any miscarriage

of justice or perversity in the reasoning adopted by the trial

Court and the High Court.

Page 216 216

173.It brings us to Criminal Appeals No.617-627 of 2010

and 604 of 2010 filed by B.M. Satija (A-9) and Bir Singh (A-

11) respectively. They were together with A.K. Gera (A-10)

charged with commission of offences punishable under

Sections 304 read with Section 36 of the IPC. The trial

Court, as already noticed in the earlier part of this judgment,

held all the three accused persons mentioned above guilty of

the offence with which they were charged and sentenced

them to undergo rigorous imprisonment for a period of seven

years besides a fine of Rs.5000/- and six months

imprisonment in default. In criminal appeals filed by the

three accused persons, the High Court has converted the

conviction from Section 304 Part II to Sections 304A, 337

and 338 read with Section 36 of the IPC in so far as B.M.

Satija (A-9) and Bir Singh (A-11) are concerned, while

acquitting A.K. Gera (A-10) of the charge. The High Court

has further reduced the sentence awarded to the appellants

B.M. Satija (A-9) and Bir Singh (A-11) from seven years

rigorous imprisonment to two years and a fine of Rs.2000/-

Page 217 217

each for the offence under Section 304-A, rigorous

imprisonment for six months with fine of Rs.500/- for the

offence under Section 337, IPC and rigorous imprisonment

for one year, with fine of Rs.1000/- for the offence under

Section 338, IPC. While appellants B.M. Satija (A-9) and Bir

Singh (A-11) have assailed their conviction and sentence

before us, the CBI has challenged the acquittal of A.K. Gera

(A-10) in Criminal Appeals No.605-616 of 2010.

174.Appearing for appellant-B.M. Satija, Mr. V.V. Giri,

learned senior counsel argued that the appellant was not one

of those deputed to attend to the complaint about the

malfunctioning of the DVB transformer on the morning of

13

th

June, 1997. He submitted that evidence adduced by the

prosecution regarding his presence and association with the

process of rectification was sketchy and did not prove beyond

a reasonable doubt his presence on the spot. He made an

attempt to persuade us to reverse the concurrent findings of

fact recorded by two Courts below in this regard and drew

our attention to the depositions of P.C. Bhardwaj (PW-40),

Page 218 218

V.K Gupta (PW-43) and Bhagwandeen (PW-44) as also the

documents marked Ex. PW-40/C, 40/A and 40/P. He urged

that the CFSL report recording the signatures sent for

examination did not lend any support to the prosecution

case.

175.Mr. Gopal Singh, Senior Counsel appearing for A.K.

Gera (A-9) respondent in CBI’s Criminal Appeal No.605-616

of 2010 contended that the order passed by the High Court

was based on appreciation of the evidence adduced by the

trial Court and that interference with any such order of

acquittal is rare unless it is found to be patently perverse.

He urged that his client A.K. Gera (A-9) was not posted in

the concerned zone in which the DVB transformer was

installed. He had nothing to do with this act. The trial Court

and the High Court have both concurrently held that the

repairs of the DVB transformer were carried out by Bir Singh

(A-11) and B.M. Satija A(-9). That finding is without any

perversity. The High Court has relying upon the depositions

Page 219 219

of P.C. Bhardwaj (PW-40) and Bhagwandeen (PW-44)

observed:

“14.12 So far as role of the accused B.M. Satija

and Bir Singh are concerned, PW-40 P.C. Bhardwaj

deposed having informed B.M. Satija about the

morning complaint. PW-44 deposed that all 3, i.e.,

Gera, Satija and Bir Singh were instrumental in

repairing of the DVB transformer at Uphaar in the

morning of 13.6.1997. Expert evidence in the form

of PW-35/A; Ex.PW36/A all established that the

cause of fire was improper crimping of the cable end

with the socket which ultimately detached at the

crucial time, resulted in intense sparking, settling

down of the cable on the transformer which resulted

in a slit; transformer oil gushed out, caught fire and

spread to the parking area resulting in the

improperly parked vehicles catching fire.

14.13 xxxxx

14.14 The depositions of other witnesses

assume importance. PW-40 clearly mentioned that

he had discussed the complaint with Satija and

chalked out the programme. PW/44 clearly deposed

having accompanied Satija, Bir Singh and Gera to

the relevant site at Uphar and witnessing the repairs

with the aid of dye and hammer. At one place, he

mentioned that Bir Singh carried out the repair

under the supervision of both the officers, in another

place of his deposition, he mentioned that Bir

Singh’s work was supervised by Satija.”

176.The above findings do not in our view suffer from any

perversity or any miscarriage of justice or call for

interference under appeal in this connection under Article

136 of the Constitution of India. Even in regard to A.K. Gera

Page 220 220

(A-9), the High Court has held that he was present on the

spot but in the absence of any further evidence to prove the

role played by him, the High Court considered it unsafe to

convict him for imprisonment:

“On an overall conspectus of the above facts, this

Court is of opinion that though Gera’s presence at

site stands established, in the absence of fuller

evidence about the role played by him, there can be

no presumption that he played any part in the

defective repairs, carried out without the aid of the

crimping machine on the Uphaar DVB transformer.

Mere presence when that cannot lead to

presumption of involvement of an actor who is not

expected to play any role and is insufficient, in the

opinion of the Court, to saddle criminal liability of

the kind envisioned under Section 304-A. To

establish that Gera had a duty to care to ensure that

notwithstanding the defective crimping carried out

by the employees competent to do so and that he

had an overriding responsibility of objecting to the

work done by them, without proving whether he was

there during the entire operation and if so how the

extent of his involvement, the conviction for causing

death due to criminal negligence cannot be arrived

at. Although, there are circumstances which point

to Gera’s presence, they may even amount to

suspicion of the role played by him, yet such

evidence proved are insufficient to prove the case

against him beyond reasonable doubt. In the

circumstances, neither can be he convicted under

Section 304 Part-II, nor under Section 304-A read

with 337/338 and 36 IPC.”

177.In fairness to Mr. Salve, learned counsel appearing for

the CBI, we must mention that he did not seriously assail the

Page 221 221

above reasoning given by the High Court. At any rate, the

view taken by the High Court is a possible view. We see no

compelling reason to interfere with that view in the facts and

circumstances of the case. Having said that, the question

remains whether the High Court was justified in convicting

appellants Bir Singh (A-11) and B.M. Satija (A-9) for the

offence of causing death by rashness and gross negligence,

punishable under sections 304A of the IPC.

178.In our view, the causa causans for the death of 59

persons was their inability to quickly exit from the balcony

area for reasons we have already indicated. That being so,

even when the repairs carried out by Bir Singh (A-11) and

B.M. Satija (A-9) may have been found to be unsatisfactory

for the reasons given by the trial Court and the High Court,

which we have affirmed, the fire resulting from such poor

repair was no more than causa sine qua non for the deaths

and, therefore, did not constitute an offence punishable under

Section 304A of the IPC. Besides, the negligence of the

occupiers of the cinema having intervened between the

Page 222 222

negligence of these two officials of the DVB and the deaths

that occurred in the incident, the causal connection between

the deaths and act of shabby repair of the installation of the

DVB transformer is not established directly.

179.The conviction of these two appellants under Section

304A cannot, therefore, be sustained. That would, however,

not affect their conviction under Sections 337 and 338 read

with Section 36 of the IPC which would remain unaffected and

is hereby affirmed.

180.Question No.1 is accordingly answered on the above

lines.

Re: Question No.II:

181.The charge framed against N.S. Chopra (A-6) and other

Managers of Uphaar Cinema was one for commission of the

offence punishable under Section 304 Part II read with

Section 36 of the IPC. The allegation made against the

Managers was that even when they were present on the

premises at the time of the incident, they had failed to either

Page 223 223

warn the patrons or facilitate their escape. They instead fled

the scene despite the knowledge that death was likely to be

caused by their acts of omission and commission. The Trial

Court had found the charge proved and convicted and

sentenced N.S. Chopra to undergo imprisonment for a period

of seven years besides a fine of Rs.5,000/- and imprisonment

for six months in default of payment. The High Court

reversed that view qua N.S. Chopra and also R.K. Sharma

(A-5) (since deceased). The High Court acquitted them of the

charges for reasons which it summed up in the following

words:

“10.11 Section 304, first part requires proof of

intention to cause death or such bodily harm as

would cause death; the second part requires proof

that knowledge existed that such injury would result

in death, or grievous injury likely to result in death.

The crucial aspect in both cases, is the state of

mind, i.e “intention” or “knowledge” of the

consequence. Proof of such intention or knowledge

has to be necessarily, of a high order; all other

hypotheses of innocence of the accused, have to be

ruled out. The prosecution here, glaringly has not

proved when these two accused fled the cinema

hall; there is no eyewitness testifying to their having

been in the balcony when the smoke entered the

hall, and having left it, which could have proved

knowledge of the likely deaths and grievous bodily

Page 224 224

injuries. Thus, this court is of the opinion that proof

of these appellants, i.e N.S. Chopra and R.K.

Sharma, having committed the offence under

Section 304, is not forthcoming. Their conviction

under that provision cannot, therefore, be

sustained.”

(emphasis supplied)

182.The High Court also examined whether N.S. Chopra and

R.K. Sharma could be convicted under Section 304A IPC, and

answered that question in the negative. The High Court was

of the view that the prosecution had failed to establish that

N.S. Chopra was present on the scene and also that the

documentary evidence adduced at the trial proved that he

had not reported for duty on the fateful day. The High Court

observed:

“10.13 As far as R. K. Sharma is concerned, the

evidence establishes that he had reported for duty…

N.S. Chopra, on the other hand, according to the

documentary evidence (Ex. PW-108/DB-1, found in

Ex.PW97/C) had not reported for duty. In his

statement under Section 313, he mentioned having

reached the cinema hall at 5-30 PM, and not being

allowed inside, since the fire was raging in the

building.

xx xx xx

Page 225 225

10.17 The totality of the above circumstances no

doubt points to complete managerial and

supervisory failure in the cinema. Such inaction is

certainly culpable, and points to grave lapses. This

undoubtedly was an important and significant part of

the causation chain. Yet, to convict the accused R.K.

Sharma and N.C. Chopra, there should be more

convincing proof of involvement. At best, there is

evidence of suspicion of their involvement. Yet, no

attempt to prove that they were present, and did

not take any effective measures to evacuate the

patrons, which they were bound to do, in the normal

course of their duty, has been made. Mere proof

that these accused were Assistant Manager, and

Manager, as on the date of the accident, and that

one of them had reported earlier, during the day, is

not adequate to prove that they caused death by

criminally negligent, or rash act. There was failure

on the part of the trial court to notice that the two

vital aspects, i.e duty and breach of that duty of

such scale, as to amount to an offence. Their

appeals are entitled to succeed. These appellants

have to, therefore, be acquitted of the charges.

Their conviction is consequently set aside.”

(emphasis supplied)

183.In fairness to Mr. Salve and Mr. Tulsi, we must say that

no serious attempt was made by them to demolish the

reasoning adopted by the High Court in coming to its

conclusion. That apart, the view taken by the High Court on

a fair appreciation of the evidence, both oral and

documentary, does not even otherwise call for any

interference by us as the same is a reasonably possible view.

Page 226 226

184.Coming then to the acquittal of S.S. Sharma (A-13) and

N.D. Tiwari (A-14), Administrative Officers, MCD, the charges

framed against the said two accused persons were for

offences punishable under Section 304A, 337 and 338 read

with Section 36 IPC. The allegation levelled against them was

that they negligently issued No Objection certificates to

Uphaar Cinema in the years 1995-96 and 1996-97 without

so much as conducting inspections of the premises, and

thereby committed a breach of the Cinematograph Act and

the Rules made thereunder. The Trial Court found that

charge established and accordingly convicted and sentenced

both the accused persons to undergo imprisonment for a

period of two years and a fine of Rs.5,000/- for the offence

punishable under Section 304A, six months for the offence

punishable under Section 337 and two years under Section

338 of the Code. The High Court has in appeal reversed the

conviction and the sentences awarded to the accused

persons on the reasoning that it summed up in the following

words:

Page 227 227

“13.6 The prosecution, in order to succeed in its

charge of accused Mr. S.S. Sharma and Mr. N.D.

Tiwari having acted with criminal negligence and

caused death and serious injury, should have first

established the duty of care either through some

enacted law like DCR, 1953 or DCR, 1981 or a

general duty discernable in their normal course of

official functions. In addition, the prosecution should

have established breach of such duty would have

resulted in a foreseeable damage and death to or in

grievous injury to several persons. Unlike in the case

of the Fire Department, the Licensing Department or

the Electrical Inspectorate, all of whom are named

authorities empowered to inspect the premises,

there is no role assigned to Administrative Officers

of the MCD. The rationale for obtaining 'no

objections' from these officers has been left

unexplained. The prosecution has failed to establish

the necessity for such No Objection Certificate and

how without such document, by the Administrative

Officers of MCD, the licensing authority, DCP

(Licensing) would not have issued the temporary

permit. Ex. 22/A, the letter by the licensing

department is in fact addressed to the Building

department, MCD.

xx xx xx

13.8 The materials on record nowhere disclose how,

even if it were assumed that Mr. S.S. Sharma and

Mr. N.D. Tiwari breached their duties of care, the

breach was of such magnitude as would have

inevitably led to death or grievous injury to several

persons and that such consequence was reasonably

foreseeable by them when they issued No Objection

Certificates. No doubt, the issuance of No Objection

Certificates and handing them over to the

beneficiary directly was a careless, even callous act.

It was also used to be placed on the record as a

prelude to the issuance of the permits. But in the

absence of clearly discernable duty of care and the

magnitude of foreseeable damage by these accused,

Page 228 228

this Court cannot affirm the findings of the Trial

Court and their conviction.

13.9 The appeals of Mr. S.S. Sharma and Mr. N.D.

Tiwari are, therefore, entitled to succeed.”

(emphasis supplied)

185.There was no serious argument advanced by either Mr.

Salve, appearing for the CBI or Mr. Tulsi for assailing the

correctness of the view taken by the High Court in appeal

and rightly so because the High Court has, in our opinion,

taken a fairly reasonable view which is in tune with the

evidence on record. There is, in our opinion, no room for our

interference even with this part of the order passed by the

High Court by which it acquitted S.S. Sharma and N.D.

Tiwari, Administrative Officers of the MCD. Our answer to

Question No.II is in the affirmative.

Re: Question No.III:

186.The Trial Court had framed charges against the accused

persons by an order dated 9

th

April, 2001 by which Sushil

and Gopal Ansal were charged with commission of offence

Page 229 229

punishable under Section 304A, 337 and 338 read with

Section 36 IPC. Against that order framing charges the

Association of Victims of Uphaar Tragedy (AVUT) filed

Criminal Revision No.270 of 2001 before the Delhi High Court

to contend that a charge under Section 304 IPC also ought to

have been framed against the said two accused persons. The

case of the association was that there was overwhelming

evidence on record to establish the charge. That revision

eventually failed and was dismissed by the High Court by its

order dated 11

th

September, 2001 (Sushil Ansal v. State

Through CBI etc. etc. 1995 (2002) DLT 623 ). Revision

petitions filed by other accused persons against the order of

framing charges were also dismissed by the High Court by

the very same order. Dealing with the contention urged on

behalf of the AVUT the High Court observed:

“34. The plea of Association of Victims of Uphaar

Tragedy to frame charges under Section 304 IPC

against accused Sh. Sushil Ansal and Sh. Gopal Ansal,

in addition to the charges already framed against

them, cannot be sustained in as much as prima facie a

case of negligence only is made out against them. The

allegations against them gross negligence, wanton

carelessness and callous indifference in regard to the

up-keep and maintenance of the cinema. Had rapid

Page 230 230

dispersal facilities been available to the patrons in the

balcony, no death or injury could have taken place and

as such, this Court is of the considered view that there

are no good and sufficient grounds for slapping a

charge under Section 304 IPC against these two

accused.”

187.What is significant is that AVUT did not bring up the

matter to this Court against the above order passed by the

High Court. On the contrary, Sushil Ansal appears to have

filed a special leave petition in this Court challenging the

dismissal of the revision petition by the High Court which was

subsequently dismissed as withdrawn by this Court by order

dated 12

th

April, 2002. The result was that the trial

commenced against the Ansal brothers on the basis of the

charges framed by the Trial Court.

188.The AVUT during the course of the trial made another

attempt to have the charge under Section 304 IPC framed

against the Ansal brothers by moving an application before

the Trial Court to that effect. The Trial Court, however,

disposed of that application stating that if it found sufficient

evidence against the Ansal brothers justifying a charge under

Page 231 231

Section 304 IPC or any other person for that matter, it would

take action suo moto for framing such a charge. Final

judgment of the Trial Court was delivered on 20

th

November,

2007 in which it convicted Ansal brothers of the offence

under Section 304A of the IPC, which clearly meant that the

Trial Court had not found any reason to frame any additional

charge against them under Section 304 IPC.

189.Aggrieved by the omission of the Trial Court to frame a

charge under Section 304 IPC, AVUT filed a revision petition

before the High Court which too was dismissed by the High

Court with the observation that their earlier revision petition

framing charges under Sections 304, 337 and 338 read with

Section 36 having been dismissed by the High Court, the said

order had become final, especially when the revisionist AVUT

did not carry the matter further to this Court. The High Court

also held that the appeal against the conviction of the Ansal

brothers having been disposed of, there was no question of

framing any charge for a graver offence in the absence of

any evidence unequivocally establishing that such a charge

Page 232 232

was made out and yet had not been framed. The High Court

held that procedure for misjoinder of charges under Section

216 applied during the stage of trial, whereas AVUT was

asking for a remand of the matter for a retrial on the fresh

charge under Section 304 Part II, which was not permissible

under the scheme of the Code. The High Court also rejected

the contention that Ansal brothers could be convicted for an

offence graver than what they were charged with.

190.In the appeal filed by AVUT against the order passed by

the High Court in the above revision petition, they have

agitated the very same issue before us. Appearing for the

Victims Association, Mr. Tulsi argued that the acts of

omission and commission of Ansal brothers by which the

egress of the patrons was obstructed warranted a conviction

not merely for the offence punishable under Section 304A

IPC but also for the offence punishable under Section 304

Part II since according to the learned counsel the said acts

were committed with the knowledge that death was likely to

result thereby. Mr. Tulsi in particular contended that the act

Page 233 233

of installing an eight-seater box that entirely blocked the

right-side exit in the balcony was itself sufficient for the

Court to order a retrial of the Ansal brothers, since they

knew by such an act they were likely to cause death of the

patrons in the event of a fire incident. On that premise, he

contended that the matter should be remanded back to the

Trial Court for retrial for commission of the offence

punishable under Section 304 Part II. In support of the

contention that the fact situation in the case at hand

established a case under Section 304 Part II, Mr. Tulsi placed

reliance on the decision of this Court in Alister Anthony

Pereira v. State of Maharashtra (2012) 2 SCC 648

where this Court was dealing with an inebriated driver,

driving under the influence of alcohol causing the death of

people on the footpath. He contended that this Court had in

that fact situation held that by driving recklessly under the

influence of alcohol the driver knew that he can thereby kill

someone. Anyone causing death must be deemed to have

Page 234 234

had the knowledge that his act of omission and commission

was likely to result in the loss of human lives.

191.Mr. Ram Jethmalani, learned counsel for Ansal brothers

on the other hand placed reliance upon the decision of this

Court in Keshub Mahindra v. State of M.P. (1996) 6 SCC

129 and argued that a case where a person in a drunken

state of mind drives a vehicle recklessly is completely

distinguishable from the case at hand and that the fact

situations are not comparable in the least. On the contrary

in the case of Keshub Mahindra (supra), this Court has

clearly repelled the contention that the charge under Section

304 Part II would be maintained against those handling the

plant from which the lethal MIC gas had leaked to cause

what is known as the infamous Bhopal Gas Tragedy in which

thousands of human beings lost their lives. If this Court did

not find a case under Section 304 Part II made out in a case

where the tragedy had left thousands dead, the question of

the present unfortunate incident being treated as one under

Section 304 Part II did not arise, contended Mr. Jethmalani.

Page 235 235

192. In Alister Anthony Pereira’s case (supra), the

accused was driving in an inebriated condition when he ran

over a number of labourers sleeping on the pavement, killing

seven of them. The Trial Court convicted the accused under

Sections 304A and 337 IPC but acquitted him under Section

304 Part II and 338 IPC. The Bombay High Court set aside

the acquittal and convicted the accused for offences under

Sections 304 Part II, 337 and 338 IPC. This Court affirmed

the said judgment of the High Court and while doing so

explained the distinction between the offence under Section

304A and that punishable under Section 304 Part II IPC. This

Court observed:

“47. Each case obviously has to be decided on its

own facts. In a case where negligence or rashness is

the cause of death and nothing more,

Section 304A may be attracted but where the rash

or negligent act is preceded with the knowledge that

such act is likely to cause death, Section 304 Part II

Indian Penal Code may be attracted and if such a

rash and negligent act is preceded by real intention

on the part of the wrong doer to cause death,

offence may be punishable under Section 302 Indian

Penal Code.”

Page 236 236

193.This Court went on to hold that the accused in the

above case could be said to have had the knowledge that his

act of reckless driving in an inebriated condition was likely to

cause death. This Court observed:

“41. Rash or negligent driving on a public road with

the knowledge of the dangerous character and the

likely effect of the act and resulting in death may

fall in the category of culpable homicide not

amounting to murder. A person, doing an act of rash

or negligent driving, if aware of a risk that a

particular consequence is likely to result and that

result occurs, may be held guilty not only of the act

but also of the result. As a matter of law - in view of

the provisions of the Indian Penal Code - the cases

which fall within last clause of Section 299 but not

within clause 'fourthly' of Section 300 may cover the

cases of rash or negligent act done with the

knowledge of the likelihood of its dangerous

consequences and may entail punishment under

Section 304 Part II Indian Penal Code.

Section 304A Indian Penal Code takes out of its

ambit the cases of death of any person by doing any

rash or negligent act amounting to culpable

homicide of either description.

xx xx xx

78. We have also carefully considered the evidence

let in by prosecution - the substance of which has

been referred to above - and we find no justifiable

ground to take a view different from that of the High

Court. We agree with the conclusions of the High

Court and have no hesitation in holding that the

evidence and materials on record prove beyond

reasonable doubt that the Appellant can be attributed

with knowledge that his act of driving the vehicle at

a high speed in the rash or negligent manner was

dangerous enough and he knew that one result

would very likely be that people who were asleep on

Page 237 237

the pavement may be hit, should the vehicle go out

of control.”

(emphasis supplied)

194. In State through PS Lodhi Colony, New Delhi v.

Sanjeev Nanda (2012) 8 SCC 450 , six bystanders were

killed when the accused, driving recklessly under the

influence of alcohol ran them over. The accused was also

shown to have gotten out of the vehicle after the incident,

inspected the gruesome damage and thereafter driven away.

While the trial Court convicted the accused under Section

304 Part II, IPC, the Delhi High Court altered the conviction

to one under Section 304A on the ground that knowledge of

causing death was not made out. This Court allowed the

appeal against this decision and held the offence of culpable

homicide not amounting to murder to have been made out.

The reasoning behind the Court’s conclusion that the accused

had the knowledge that death was likely to be caused was

based on the facts of the case and the presumption that was

drawn in Alister Anthony (supra) against drunken drivers in

Page 238 238

hit and run cases. K.S.P. Radhakrishnan, J. speaking for

this Court observed as follows:

“The principle mentioned by this Court in Alister

Anthony Pereira (supra) indicates that the person

must be presumed to have had the knowledge that,

his act of driving the vehicle without a licence in a

high speed after consuming liquor beyond the

permissible limit, is likely or sufficient in the

ordinary course of nature to cause death of the

pedestrians on the road. In our view, Alister

Anthony Pareira (supra) judgment calls for no

reconsideration. Assuming that Shri Ram Jethmalani

is right in contending that while he was driving the

vehicle in a drunken state, he had no intention or

knowledge that his action was likely to cause death

of six human beings, in our view, at least,

immediately after having hit so many human beings

and the bodies scattered around, he had the

knowledge that his action was likely to cause death

of so many human beings, lying on the road

unattended. To say, still he had no knowledge about

his action is too childish which no reasonable man

can accept as worthy of consideration. So far as this

case is concerned, it has been brought out in

evidence that the accused was in an inebriated

state, after consuming excessive alcohol, he was

driving the vehicle without licence, in a rash and

negligent manner in a high speed which resulted in

the death of six persons. The accused had sufficient

knowledge that his action was likely to cause death

and such an action would, in the facts and

circumstances of this case fall under Section 304(II)

of the Indian Penal Code and the trial court has

rightly held so and the High Court has committed an

error in converting the offence to Section 304A of

the Indian Penal Code.”

Page 239 239

195. What emerges from the two cases referred to above is

that:

a. Each case must be decided on its own facts

to determine whether such knowledge did in

fact precede the rash/negligent act.

b. What converts a case apparently falling

under Section 304A into one under Section

304 Part II is the knowledge that the act is

likely to cause death”.

c. Where the act which causes death is the

act of driving a vehicle in a rash and reckless

manner and in an inebriated state after

consuming liquor, the accused may be attributed

the knowledge that such act was likely to cause

death of others using the road.

196.The decision in Alister Anthony Pereira's case

(supra) or that delivered in Sanjeev Nanda’s case (supra)

does not lay down any specific test for determining whether

the accused had the knowledge that his act was likely to

cause death. The decisions simply accept the proposition

that drunken driving in an inebriated state, under the

influence of alcohol would give rise to an inference that the

person so driving had the knowledge that his act was likely to

cause death. The fact situation in the case at hand is not

Page 240 240

comparable to a case of drunken driving in an inebriated

state. The case at hand is more akin on facts to Keshub

Mahindra’s case (supra) where this Court was dealing with

the question whether a case under Section 304 part II was

made out against the management of Union Carbide India

Ltd., whose negligence had resulted in highly toxic MIC gas

escaping from the plant at Bhopal. The trial Court in that

case had framed a charge against the management of the

company for commission of an offence under Section 304

Part II, IPC, which was upheld by the High Court in revision.

This Court, however, set aside the order framing the charge

under Section 304 Part II and directed that charges be

framed under Section 304A, IPC instead. This Court

observed:

“20…The entire material which the prosecution relied

upon before the Trail Court for framing the charge

and to which we have made a detailed reference

earlier, in our view, cannot support such a charge

unless it indicates prima facie that on that fateful

night when the plant was run at Bhopal it was run

by the concerned accused with the knowledge that

such running of the plant was likely to cause deaths

of human beings. It cannot be disputed that mere

act of running a plant as per the permission granted

by the authorities would not be a criminal act. Even

Page 241 241

assuming that it was a defective plant and it was

dealing with a very toxic and hazardous substance

like MIC the mere act of storing such a material by

the accused in Tank No. 610 could not even prima

facie suggest that the concerned accused thereby

had knowledge that they were likely to cause death

of human beings. In fairness to the prosecution it

was not suggested and could not be suggested that

the accused had an intention to kill any human

being while operating the plant. Similarly on the

aforesaid material placed on record it could not be

even prima facie suggested by the prosecution that

any of the accused had a knowledge that by

operating the plant on that fateful night whereat

such dangerous and highly volatile substance like

MIC was stored they had the knowledge that by this

very act itself they were likely to cause death of any

human being. Consequently in our view taking

entire material as aforesaid on its face value and

assuming it to represent the correct factual position

in connection with the operation of the plant at

Bhopal on that fateful night it could not be said that

the said material even prima facie called for framing

of a charge against the concerned accused under

Section 304 Part II, IPC on the specious plea that

the said act of the accused amounted to culpable

homicide only because the operation of the plant on

that night ultimately resulted in deaths of a number

of human beings and cattle…”

(emphasis supplied)

197.At the same time, the Court held that there was enough

evidence to prima facie establish that the accused

management had committed an offence under Section 304A

and observed that the evidence assembled by the

prosecution suggested that structural and operational defects

Page 242 242

in the working of the plant was the direct and proximate

cause of death:

“21… It cannot be disputed that because of the

operation of the defective plant at Bhopal on that

fateful night a highly dangerous and volatile

substance like MIC got converted into poisonous gas

which snuffed off the lives of thousands of human

beings and maimed other thousands and killed

number of animals and that all happened, as seen at

least prima facie by the material led by the

prosecution on record, because of rash and

negligent act on the part of the accused who were

in-charge of the plant at Bhopal. Even though,

therefore, these accused cannot be charged for

offences under Section 304 Part II the material led

against them by the prosecution at least prima facie

showed that the accused were guilty of rash or

negligent acts not amounting to culpable homicide

and by that act caused death of large number of

persons… In this connection we must observe that

the material led by the prosecution to which we

have made a detailed reference earlier prima facie

shows that there were not only structural defects

but even operational defects in the working of the

plant on that fateful night which resulted into this

grim tragedy. Consequently a prima facie case is

made out for framing charges under

Section 304A against the concerned accused…”

198.It is noteworthy that an attempt was made by the CBI

and State of Madhya Pradesh to have the above order

recalled and set aside by way of a curative petition which

failed with the dismissal of the petition by a five-Judge Bench

Page 243 243

of this Court (See C.B.I. and Ors. etc. v. Keshub

Mahindra etc. (2011) 6 SCC 216).

199.We may at this stage refer to Section 464 of the Code

of Criminal Procedure which deals with the effect of the

omission to frame or absence of, or error in the framing of

charge and inter-alia provides that no finding, sentence or

order by a Court of competent jurisdiction shall be deemed

invalid merely on the ground that no charge was framed or

on the ground of any error, omission or irregularity in the

charge including any misjoinder of charges, unless, in the

opinion of the Court of appeal, confirmation or revision, a

failure of justice has in fact been occasioned thereby. It is

only if the Court of appeal, confirmation or revision is of

opinion that a failure of justice has in fact been occasioned

that it may in the case of an omission to frame a charge,

order that a charge be framed and that the trial be

recommenced from the point immediately after the framing

of the charge. The omission to frame a charge is, therefore,

by itself not enough for the Court of appeal, confirmation or

Page 244 244

revision to direct the framing of the charge. What is

essential for doing so is that the Court of appeal in revision

or confirmation must record a finding to the effect that

failure of justice has in fact been occasioned on account of

the non-framing of charge.

200.The expression ‘failure of justice’ is not defined, no

matter the expression is very often used in the realm of both

civil and criminal jurisprudence. In Shamnsaheb M.

Multtani v. State of Karnataka (2001) 2 SCC 577 this

Court while dealing with that expression sounded a note of

caution and described the expression as an etymological

chameleon. That simile was borrowed from Lord Diplock’s

opinion in Town Investments Ltd. v. Department of the

Environment 1977 (1) All E.R. 813 . This Court held that

the criminal court, particularly the superior court should

make a close examination to ascertain whether there was

really a failure of justice or whether it is only a camouflage.

201. Mr. Tulsi, learned counsel for the victims’ association

was unable to satisfactorily demonstrate any failure of justice

Page 245 245

not only because there was no evidence strongly suggestive

of the accused persons having had the knowledge that their

acts of omission and commission were likely to cause death

but also because failure of justice cannot be viewed in

isolation and independent of the prejudice that the accused

persons may suffer on account of inordinate delay in the

completion of the trial or what may result from an indefinite

procrastination of the matter by a remand to the trial Court.

That speedy justice is a virtue recognised an integral and

essential part of the fundamental right to life under Article 21

of the Constitution is well settled by a long line of decisions of

this Court including the three-Judge Bench decision in

Hussainara Khatoon and Ors. v. Home Secretary, State

of Bihar, Patna (1980) 1 SCC 81 reiterated in A.R.

Antulay v. R.S. Nayak (1992) 1 SCC 225 . This Court in

the latter case summed up the nature of the prejudice

caused to an accused by a protracted trial in the following

words:

“3. The concerns underlying the Right to speedy

trial from the point of view of the accused are:

Page 246 246

(a) The period of remand and pre-conviction

detention should be as short as possible. In other

words, the accused should not be subjected to

unnecessary or unduly long incarceration prior to

his conviction;

(b) The worry, anxiety, expense and distur-

bance to his vocation and peace, resulting from

an unduly prolonged investigation, inquiry or trial

should be minimal; and

(c)Undue delay may well result in impairment of the

ability of the accused to defend himself, whether

on account of death, disappearance or non-avail-

ability of witnesses or otherwise”

202.The Court undertook a comprehensive review of the

earlier decisions in which a remand for a fresh trial was

considered inappropriate and unfair to the accused persons

having regard to the intervening delay. The following

passage is in this regard apposite:

“41. In Machander v. State of Hyderabad 1955 CriLJ

1644, this Court observed that while it is incumbent

on the court to see that no guilty person escapes, it

is still more its duty to see that justice is not

delayed and accused persons are not indefinitely

harassed. The scales, the court observed, must be

held even between the prosecution and the accused.

In the facts of that case, the court refused to order

trial on account of the time already spent and other

relevant circumstances of that case. In Veerbhadra

v. Ramaswamy Naickar 1958 CriLJ 1565, this Court

refused to send back proceedings on the ground that

already a period of five years has elapsed and it

would not be just and proper in the circumstances of

Page 247 247

the case to continue the proceedings after such a

lapse of time. Similarly, in Chajju Ram v. Radhey

Sham [1971] S.C.R. 172, the court refused to direct

a re-trial after a period of 10 years having regard to

the facts and circumstances of the case. In State of

U.P. v. Kapil Deo Shukla 1972 CriLJ 1214, though

the court found the acquittal of the accused

unsustainable, it refused to order a remand or direct

a trial after a lapse of 20 years. It is, thus, clear that

even apart from Article 21 courts in this country

have been cognizant of undue delays in criminal

matters and wherever there was inordinate delay or

where the proceedings were pending for too long

and any further proceedings were deemed to be

oppressive and unwarranted, they were put an end

to by making appropriate orders.”

203.In Machander’s case referred to in the above passage,

this Court had summed up the position as follows:

“…We are not prepared to keep persons who are on

trial for their lives under indefinite suspense because

trial judges omit to do their duty. Justice is not one-

sided. It has many facets and we have to draw a

nice balance between conflicting rights and duties.

While it is incumbent on us to see that the guilty do

not escape it is even more necessary to see that

persons accused of crime are not indefinitely

harassed. They must be given a fair and impartial

trial and while every reasonable latitude must be

given to those concerned with the detections of

crime and entrusted with the administration of

justice, limits must be placed on the lengths to

which they may go.

Except in clear cases of guilt, where the error is

purely technical, the forces that are arrayed against

the accused should no more be permitted in special

appeal to repair the effects of their bungling than an

accused should be permitted to repairs gaps in his

defence which he could and ought to have made

Page 248 248

good in the lower courts. The scales of justice must

be kept on an even balance whether for the accused

or against him, whether in favour of the State or

not; and one broad rule must apply in all cases…”

(emphasis supplied)

204.So also in Ramaswamy Naickar’s case relied upon by

this Court in the above passage, a fresh inquiry into the

complaint after five years was considered inappropriate. This

Court observed:

“…But the question still remains whether, even after

expressing our strong disagreement with the

interpretation of the Section by the courts below,

this Court should direct a further inquiry into the

complaint, which has stood dismissed for the last

about 5 years. The action complained of against the

accused persons, if true, was foolish, to put it

mildly, but as the case has become stale, we do not

direct further inquiry into this complaint. If there is

a recurrence of such a foolish behaviour on the part

of any Section of the community, we have no doubt

that those charged with the duty of maintaining law

and order, will apply the law in the sense in which

we have interpreted the law. The appeal is

therefore, dismissed…”

(emphasis supplied)

205.To the same effect is the decision of this Court in

Kantilal Chandulal Mehta v. The State of Maharashtra

and Anr. (1969) 3 SCC 166 where this Court observed:

Page 249 249

“…In our view the Criminal Procedure Code gives

ample power to the courts to alter or amend a

charge whether by the trial court or by the appellate

court provided that the accused has not face a

charge for a new offence or is not prejudiced either

by keeping him in the dark about that charge or in

not giving a full opportunity of meeting it and

putting forward any defence open to him, on the

charge finally preferred against him…”

206.The incident in the case at hand occurred about 16

years ago. To frame a charge for a new offence and remand

the matter back for the accused to face a prolonged trial

again does not appear to us to be a reasonable proposition.

We say so independent of the finding that we have recorded

that the fact situation the case at hand does not suggest that

the accused Ansal brothers or any one of them, had the

knowledge that their acts of omission or commission was

likely to cause death of any human being. Question No.3 is

accordingly answered in the negative.

Re: Question No.IV:

207.We have, in the earlier part of this judgment, while

dealing with Question No.I, examined the scope of criminal

Page 250 250

appeals by special leave and observed that this Court may

interfere in such appeals only where wrong inferences of law

have been drawn from facts proved before the Courts or

where the conclusions drawn by the High Court are perverse

and based on no evidence whatsoever. The scope of

interference by this Court with the quantum of punishment

awarded by the High Court is also similarly limited to cases

where the sentence awarded is manifestly inadequate and

where the Court considers such reduced punishment to be

tantamount to failure of justice. This can be best illustrated

by reference to cases in which this Court has interfered to

either enhance the punishment awarded by the High Court

or remitted the matter back to the High Court for a fresh

order on the subject.

208.In Sham Sunder v. Puran and Anr. (1990) 4 SCC

731, the High Court had converted a conviction for an

offence under Section 302 to that under Section 304 Part I

and reduced the sentence to the period already undergone

(less than six months) where the accused had inflicted

Page 251 251

repeated blows with a sharp-edged weapon on the chest of

the deceased, and later on vital parts like the head, back and

shoulders after he fell to the ground in a sudden fight. This

Court found the reduced sentence imposed by the High Court

to be grossly inadequate and held that it amounted to a

failure of justice. Enhancing the sentence to five years

imprisonment, this Court observed:

“3. It is true that the High Court is entitled to

reappraise the evidence in the case. It is also true

that under Article 136, the Supreme Court does not

ordinarily reappraise the evidence for itself for

determining whether or not the High Court has come

to a correct conclusion on facts but where the High

Court has completely missed the real point requiring

determination and has also on erroneous grounds

discredited the evidence...the Supreme Court would

be justified in going into the evidence for the

purpose of satisfying itself that grave injustice has

not resulted in the case.

xx xx xx

8. The High Court has reduced the sentence to the

term of imprisonment already undergone while

enhancing the fine. It is pointed out that the

respondents have undergone only imprisonment for

a short period of less than six months and, in a

grave crime like this, the sentence awarded is rather

inadequate...The sentence imposed by the High

Court appears to be so grossly and entirely

inadequate as to involve a failure of justice. We are

of opinion that to meet the ends of justice, the

sentence has to be enhanced.”

(emphasis supplied)

Page 252 252

209.In Deo Narain Mandal v. State of Uttar Pradesh

(2004) 7 SCC 257, the trial Court had awarded a maximum

sentence of two years rigorous imprisonment for an offence

punishable under Section 365, IPC. The High Court reduced

the sentence to the period undergone (forty days). A three-

Judge Bench of this Court intervened on the ground that the

sentence awarded was wholly disproportionate to the crime

and substituted a sentence of six months rigorous

imprisonment. The Court held as follows:

“8. This brings us to the next question in regard to

the reduction of sentence made by the High Court.

In criminal cases awarding of sentence is not a mere

formality. Where the statute has given the court a

choice of sentence with maximum and minimum

limit presented then an element of discretion is

vested with the court. This discretion cannot be

exercised arbitrarily or whimsically. It will have to be

exercised taking into consideration the gravity of

offence, the manner in which it is committed, the

age, the sex of the accused, in other words the

sentence to be awarded will have to be considered

in the background of the fact of each case and the

court while doing so should bear in mind the

principle of proportionality. The sentence awarded

should be neither excessively harsh nor ridiculously

low.

xx xx xx

Page 253 253

10. The High Court in this case without even

noticing the fact what is the actual sentence

undergone by the appellant pursuant to his

conviction awarded by the Trial Court proceeded to

reduce the same to the period already undergone

with an added sentences of fine as stated above. Of

course, the High Court by the impugned order

recorded that the facts and circumstances of the

case as well as age, character and other antecedents

of the appellant which made the court feel that the

ends of justice would be met if the sentence is

reduced and modified. This conclusion of the High

Court for reducing the sentence in our considered

view is wholly disproportionate to the offence of

which the appellant is found guilty.

11...On facts and circumstances of this case, we

must hold that sentence of 40 days for an offence

punishable under Section 365/511 read with Section

149 is wholly inadequate and disproportionate.

12. For the reasons stated above, we are of the

opinion that the judgment of the High Court, so far

as it pertains to the reduction of sentence awarded

by the Trial Court will have to be set aside.”

(emphasis supplied)

210.Similarly in State of U.P. v. Shri Kishan (2005) 10

SCC 420 this Court intervened when a sentence of seven

years rigorous imprisonment awarded by the trial Court for

an offence punishable under Section 304 Part II, IPC was

reduced by the High Court to the period already undergone,

without regard to the period actually served by the accused.

This Court directed the High Court to re-hear the appeal on

Page 254 254

the question of sentence keeping in mind the principles on

sentencing laid down by this Court in State of Madhya

Pradesh v. Ghanshyam Singh (2003) 8 SCC 13 that the

sentence must be proportionate to the offence committed

and sentence ought not to be reduced merely on account of

long pendency of the matter.

211.In State of M.P. v. Sangram and Ors. AIR 2006 SC

48 a three-Judge Bench of this Court remanded the matter

to the High Court for fresh disposal without going into the

merits of the case, when it found that the High Court had

reduced a sentence for an offence under Section 307 IPC

from seven years rigorous imprisonment to the period

already undergone (ten months and five days) by a short

and cryptic judgment:

“...Learned counsel for the appellant has submitted

that the sentence imposed by the High Court is

wholly inadequate looking to the nature of the

offence. The High Court has not assigned any

satisfactory reason for reducing the sentence to less

than one year. That apart, the High Court has

written a very short and cryptic judgment. To say

the least, the appeal has been disposed of in a most

unsatisfactory manner exhibiting complete non-

application of mind. There is absolutely no

Page 255 255

consideration of the evidence adduced by the

parties...Since the judgment of the High Court is not

in accordance with law, we have no option but to set

aside the same and to remit the matter back to the

High Court for a fresh consideration of the appeal...”

212.It is manifest from the above that while exercising

extra-ordinary jurisdiction under Article 136 of the

Constitution this Court has not acted like an ordinary

Appellate Court but has confined its interference only to such

rarest of rare situations in which the sentence awarded is so

incommensurate with the gravity of the offence that it

amounts to failure of justice. As a matter of fact in Deo

Narain Mandal’s case (supra) while this Court found the

sentence awarded to be wholly disproportionate to gravity of

the offence, this Court considered imprisonment for a period

of six months to be sufficient for an offence which is

punishable by a maximum term of two years rigorous

imprisonment. Award of sentence of one year rigorous

imprisonment for an offence where maximum sentence

prescribed extends to two years cannot, therefore, be said to

Page 256 256

be inadequate to call for interference by this Court under

Article 136 of the Constitution.

213.Having said that we must notice certain additional and

peculiar features of this case. First and foremost is the fact

that Mr. Salve, learned counsel for CBI, did not, in the course

of his submissions, urge that the sentence awarded by the

High Court to Ansals was inadequate. This is in contrast to

the grounds urged in the memo of appeal by the CBI where

the inadequacy of sentence was also assailed. In the

absence of any attempt leave alone a serious one by the

State acting through CBI to question the correctness of the

view taken by the High Court on the quantum of sentence we

would consider the ground taken in the memo of appeal to

have been abandoned at the Bar.

214.The second and an equally important consideration that

would weigh with any Court is the question of prolonged trial

that the accused have faced and the delay of more than

sixteen years in the conclusion of the proceedings against

them. We have in the earlier part of our order referred to the

Page 257 257

decision of a three-Judge Bench of this Court in Hussainara

Khatoon case (supra) where this Court declared the right to

speedy trial to be implicit in Article 21 of the Constitution.

Such being the case delay has been often made a basis for

the award of a reduced sentence, as for instance in Balaram

Swain v. State of Orissa 1991 Supp (1) SCC 510 this

Court reduced the sentence from one year rigorous

imprisonment to the period undergone (less than six months)

on the ground that there was a delay of twenty three years

involving long mental agony and heavy expenditure for the

accused. So also in M.O. Shamsudhin v. State of Kerala

(1995) 3 SCC 351 sentence was reduced by this Court from

two years rigorous imprisonment to the period undergone on

the ground of delay of eight years. There is no reason why

in the case at hand the delayed conclusion of the

proceedings should not have been taken by the High Court

as a ground for reduced sentence of one year.

215.The third circumstance which dissuades us from

interfering with the sentence awarded by the High Court is

Page 258 258

the fact that the appellant-Ansals did not have any criminal

background and are both senior citizens, whose company has

already been adjudged liable to pay compensation to the

victims besides punitive damages awarded against them.

This Court has in MCD, Delhi v. AVUT (supra) arising out of

a writ petition seeking compensation for the victims and their

families awarded compensation @ Rs.10 lakhs in the case of

death of those aged more than 20 years and 7.5 lakhs in the

case of those aged 20 years and less besides compensation

of Rs.1 lakh to those injured in the incident with interest @

9% p.a. and punitive damages of Rs.25 lakhs. There is no

dispute that the amount awarded by the High Court has been

deposited by the Ansal Theaters & Clubotels (P) Ltd. in the

proportion in which the claim has been awarded. The award

so made is in tune with the spirit of the view taken by this

Court in Ankush Shivaji Gaikwad v. State of

Maharashtra (2013) 6 SCC 770 where this Court noted a

global paradigm shift away from retributive justice towards

victimology or restitution in criminal law. There is no

Page 259 259

gainsaying that in the absence of the order passed by this

Court in MCD, Delhi v. AVUT (supra), we may have

ourselves determined the compensation payable to the

victims and awarded the same against Ansal brothers. Any

such exercise is rendered unnecessary by the said decision

especially because a reading of sub-section (5) of Section

357 of the Cr.P.C. makes it manifest that compensation

awarded by a Criminal Court under Section 357 cannot be

more than the sum that may be payable or recovered as

compensation in a subsequent civil suit. That provision was

interpreted by this Court in Dilip S. Dahanukar v. Kotak

Mahindra Co. Ltd. (2007) 6 SCC 528 to hold that the

amount of compensation under Section 357 should ordinarily

be less than the amount which can be granted by a civil

Court upon appreciation of the evidence brought before it for

losses that it may have reasonably suffered.

216.For all that we have stated above we do not see any

merit in the contention of Mr. Tulsi that the punishment

awarded to the Ansal brothers ought to be enhanced either

Page 260 260

because there is an allegation against them for tampering

with the Court’s record or because there is a complaint

pending against them before the learned ACMM in which

Ansal brothers and their so called henchmen are accused of

having intimidated and threatened the President of the

Victims’ Association. There is no gainsaying that both these

matters are pending adjudication by the competent criminal

Court and any observation as to the truthfulness of the

allegations made therein will not only be inappropriate but

also prejudicial to one or the other party. So also the

argument that the Ansal brothers having persistently lied

about their association with the company does not, in our

opinion, outweigh the considerations that we have indicated

hereinabove while upholding the view taken by the High

Court on the question of sentence. We need to remind

ourselves that award of punishment in a case where guilt of

the accused is proved, is as serious and important a matter

as the forensic process of reasoning by which the

presumption of innocence is rebutted and the accused

Page 261 261

pronounced guilty. Like the former the latter also needs to be

guided by sound logic uninfluenced by any emotional or

impulsive outburst or misplaced sympathy that more often

than not manifests itself in the form of a sentence that is

either much too heavy and oppressive or wholly

incommensurate considering the gravity of the offence

committed. Courts have to avoid such extremities in their

approach especially where there is no legislative compulsion

or statutory prescription in the form of a minimum sentence

for an offence. The Courts do well to avoid the Shylockian

heartlessness in demanding the proverbial pound of flesh.

Justice tempered by mercy is what the Courts of law

administer even to the most hardened criminals. A spine-

chilling sentence may be the cry of those who have suffered

the crime or its aftermath but Courts are duty bound to hold

the scales of justice even by examining the adequacy of

punishment in each case having regard to the peculiar facts

in which the offence was committed and the demands of

justice by retribution within permissible limits. Absence of a

Page 262 262

uniform sentencing policy may often make any such

endeavour difficult but the Courts do, as they ought to,

whatever is fair and reasonable the difficulties, besetting that

exercise notwithstanding.

217.Question No.IV is accordingly answered in the negative.

Re: Question No.V:

218.Adherence to safety standards in cinema theatres and

multiplexes in India is the key to the prevention of tragedies

like the one in the instant case. The misfortune, however, is

that those concerned with the enforcement of such standards

often turn a blind eye to the violations, in the process

endangering the lives of those who frequent such places.

While the case at hand may be an eye-opener for such of

them as are remiss in their duty towards the public visiting

cinema theatres and multiplexes, the authorities concerned

cannot afford to let their guard down. As seen in the earlier

part of this order, there are both civil and criminal liabilities

that arise out of any such neglect. Those who commit

Page 263 263

violations of the same are accountable before law and may

eventually come to grief should an incident occur resulting in

injury or loss of human lives. We would have in the ordinary

course issued directions to the authorities to take corrective

steps, but for the fact that such directions have already been

issued by a coordinate Bench while dealing with claims for

payment of compensation made by the legal heirs of those

who died and others who were injured in the incident. This

Court has in the said decision observed:

“45. While affirming the several suggestions by the

High Court, we add the following suggestions to the

government for consideration and implementation:

(i) Every licensee (cinema theatre) shall be required

to draw up an emergency evacuation plan and get it

approved by the licensing authority.

(ii) Every cinema theatre shall be required to screen

a short documentary during every show showing the

exits, emergency escape routes and instructions as

to what to do and what not to do in the case of fire

or other hazards.

(iii) The staff/ushers in every cinema theatre should

be trained in fire drills and evacuation procedures to

provide support to the patrons in case of fire or

other calamity.

(iv) While the theatres are entitled to regulate the

exit through doors other than the entry door, under

no circumstances, the entry door (which can act as

an emergency exit) in the event of fire or other

emergency) should be bolted from outside. At the

Page 264 264

end of the show, the ushers may request the

patrons to use the exit doors by placing a temporary

barrier across the entry gate which should be easily

movable.

(v) There should be mandatory half yearly

inspections of cinema theatres by a senior officer

from the Delhi Fire Services, Electrical Inspectorate

and the Licensing Authority to verify whether the

electrical installations and safety measures are

properly functioning and take action wherever

necessary.

(vi) As the cinema theatres have undergone a

change in the last decade with more and more

multiplexes coming up, separate rules should be

made for Multiplex Cinemas whose requirements

and concerns are different from stand-alone cinema

theatres.

(vii) An endeavour should be made to have a single

point nodal agency/licensing authority consisting of

experts in structural Engineering/building, fire

prevention, electrical systems etc. The existing

system of police granting licences should be

abolished.

(viii) Each cinema theatre, whether it is a multiplex

or stand-alone theatre should be given a fire safety

rating by the Fire Services which can be in green

(fully compliant), yellow (satisfactorily compliant),

red (poor compliance). The rating should be

prominently displayed in each theatre so that there

is awareness among the patrons and the building

owners.

(ix) The Delhi Disaster Management Authority,

established by the Government of NCT of Delhi may

expeditiously evolve standards to manage the

disasters relating to cinema theatres and the

guidelines in regard to ex gratia assistance. It

should be directed to conduct mock drills in each

cinema theatre at least once in a year.”

Page 265 265

219.We had in the light of the above passed an order in

Criminal Appeal No.603 of 2010 directing the concerned to

file a status report as to the steps taken pursuant to the

above directions. We regret to say that nothing much

appears to have happened since the issue of the directions

extracted above. This would have called for monitoring of the

steps which the authorities concerned were directed to take,

but any such process would have further delayed the

pronouncement of this order. We have, therefore, decided

against that course. We all the same leave it open to the

Victims’ Association or any other public spirited person to

seek implementation of the said directions in appropriate

proceedings.

220.Question No. V is answered accordingly.

221.In the result :

(i) Criminal Appeals No.597 of 2010 and 598 of 2010

filed by Sushil Ansal (A-1) and Gopal Ansal (A-2)

Page 266 266

respectively are hereby dismissed upholding the

conviction and sentences awarded to them.

(ii)Criminal Appeal No.599 of 2010 filed by Divisional

Fire Officer, H.S. Panwar (A-15) is also dismissed

upholding his conviction and sentence.

(iii)Criminal Appeal No.617-627 of 2010 and No.604 of

2010 filed by D.V.B. 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.

(iv)Criminal Appeal No.605-616 of 2010 filed by CBI and

Criminal Appeal No.600-602 of 2010 filed by the

Association of Victims of Uphaar Tragedy are

dismissed.

222.Appellants Sushil Ansal (A-1), Gopal Ansal (A-2) and

H.S. Panwar (A-15) are on bail. They are granted three

Page 267 267

weeks time to surrender, failing which the Trial Court shall

take appropriate steps for having them apprehended and

committed to jail for undergoing the remainder of their

sentences.

.………………….……….…..…J.

(T.S. THAKUR)

March 5, 2014

Page 268 268

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELALTE JURISDICTION

CRIMINAL APPEAL NOs. 605-616/2010

STATE THROUGH CBI .. Appellant

Versus

SUSHIL ANSAL & ORS. ETC. ..Respondents

WITH

CRIMINAL APPEAL NOs. 600-602/2010

ASSOCIATION OF VICTIMS OF UPHAAR TRAGEDY .Appellant

Versus

SUSHIL ANSAL & ANR. ..Respondents

J U D G M E N T

Page 269 269

GYAN SUDHA MISRA, J.

1. Having had the benefit of the views and reasonings

assigned in the judgment and order of Hon’ble Justice T.S. Thakur,

I entirely agree and hence concur with the findings recorded

therein which are based on an in depth analysis and meticulous

scrutiny of evidence led by the prosecution as also the accused

appellants therein. Hence, I approve of the conviction of the

accused appellants under Sections 304A, 337, 338 read with

Section 36 of the Indian Penal Code (‘IPC’ for short) and Section 14

of the Indian Cinematograph Act, 1952.

2. However, when it comes to determination and

imposition of sentence on the appellants due to their gross

criminal negligence, I find it difficult to be unmindful or ignore that

this country and more particularly the capital city of Delhi was

shocked and shaken to the core 16 years ago by the magnitude

and disastrous incident which took place on 13.6.1997 in a

cinema house now widely known as Uphaar Tragedy which had

virtually turned the cinema house into a pitch dark gas chamber

wherein the cinema viewers were initially trapped due to lack of

Page 270 270

sufficient space and light for exit from the cinema hall and finally

59 persons lost their lives due to asphyxiation in the catastrophe

which is perhaps unparalleled in the history of the city of Delhi.

This tragic incident happened due to grave lapse on the part of

the appellants/respondents in the instant appeals preferred by the

AVUT and the CBI, who have been held guilty of gross criminal

negligence concurrently by the Trial Court and the High Court

which are now being approved by us in these appeals.

3. The appellants Sushil Ansal and Gopal Ansal in Criminal

Appeal No. 597 of 2010 and Criminal Appeal No.598 of 2010,

therefore, had been charged and convicted for an offence under

Section 304A, 337, 338 read with Section 36 I.P.C. and Section 14

of the Cinematograph Act, 1952 and sentenced to undergo

imprisonment for two years by the trial court. Similarly, the

appellants in Criminal Appeal No.599 of 2010 and Criminal Appeal

No.617 to 627 of 2010 and Criminal Appeal No.604 of 2010

preferred by the Divisional Fire Officer H.S. Panwar and Officers of

Delhi Vidyut Board (shortly referred to as ‘DVB’) were also

convicted and sentenced to terms of imprisonment specified in

the impugned judgment and order of the High Court of Delhi. On

Page 271 271

appeal, however, the High Court although upheld the conviction of

the appellants/respondents herein under the sections referred to

hereinbefore, was pleased to reduce the sentence of two years

into one year but the appellants/respondents herein have still

preferred a batch of appeals in this Court challenging their

conviction and sentence on several grounds.

4. Learned Justice T.S. Thakur in the accompanying

judgment and order has already dealt with the matter in extensive

detail and has recorded a finding upholding their conviction and

sentence under Section 304A alongwith the other Sections. I fully

endorse the same and hence uphold the conviction of the

appellants under Section 304A, 337, 338 read with Section 36 of

the IPC and Section 14 of the Cinematograph Act, 1952.

5. But with regard to the question of sentence, it may be

noted that the trial court had convicted the appellants and

sentenced them to imprisonment for two years which has been

reduced by the High Court to one year only in spite of the fact

that the High Court also upheld the findings of the trial court on

the charge under Section 304A and other allied sections

Page 272 272

referred to hereinbefore. However, the High Court in spite of its

finding highlighting the magnitude and gravity of the offence

committed by the appellants has simply observed that the

maximum sentence of two years under Section 304A is fit to be

reduced to a period of one year only for which no specific

reason much less cogent and convincing has been

assigned as to why in the wake of

the finding upholding the charge and conviction under Section

304A IPC, should not have upheld and maximum sentence of two

years and whether the same was fit to be reduced to a period of

one year only. But, before dealing with the question of quantum

and sufficiency of punishment imposed on the appellant, I deem it

appropriate to take into consideration the appeal filed by the

appellant-Association for victims of Uphaar Tragedy (shortly

referred to as ‘the AVUT’) bearing Criminal Appeal No.600-

602/2010 filed by the AVUT in a representative capacity for the

victims of Uphaar Tragedy as also the appeal filed by the C.B.I.

bearing No.605 to 616 of 2010.

Page 273 273

6. Learned Senior Counsel Mr. K.T.S. Tulsi in support of the

appeal preferred by the AVUT had initially challenged the charge

framed against the accused appellants under Section 304A and

had contended that the charge was fit to be converted under

Section 304 Part II IPC. On perusal of the findings, views and

observations as also the reasons assigned therein by Hon’ble

Thakur, J., I entirely agree that after more than 16 years of the

incident, it would not be just and appropriate to remand the

matter back to the trial court to consider converting the charge

from Section 304A to 304 IPC so that the accused may face

prolonged trial all over again as I am also equally of the view

that it would not be reasonable or a just proposition and the

correct course of action to adopt. However, this does not deter

me from accepting the contention of the counsel for the AVUT

that even if this Court considers that at this length of time from

the date of the incident ordering a fresh trail may not be in the

larger public interest, it would not be a reason to refuse to

consider whether accused-appellants deserved the maximum

sentence permissible under Section 304A IPC in spite of the

gravity of charge and conviction which we have upheld.

Page 274 274

7. In order to consider this crucial aspect of the matter, it

would be necessary to recollect and refer to the findings recorded

by the trial court and the High Court approved by us which

learned Thakur J. has analyzed in great detail holding that the

death of 59 innocent persons are directly relatable to the rash

and negligent acts of omissions and commissions of the accused

persons which were performed with such gross negligence and

indifference which clearly amounts to culpable criminal negligence

and failure to exercise reasonable and proper care in running the

cinema shows in their theatre namely Uphaar and the failure of

the accused-appellants to perform the imperative duties cast

upon them by statutory rules, which were sufficient to establish

culpable criminal rashness and it further establishes that they

acted with consciousness and the requisite knowledge as to the

consequence of their acts of omissions and commissions. Death

of innocent persons is thus not only contributed by the actions of

the accused-appellants but is directly relatable to the overt acts

and conscious omissions performed by them. Hence, I fully

agree with the views of learned Brother Justice Thakur that the

degree of care expected from an occupier/owner of a place which

Page 275 275

is frequented everyday by hundreds if not thousands is very

high in comparison to any other place that is less frequented or

more sparingly used for public functions. It is also equally true

and I agree that the higher the number of visitors to a place and

greater the frequency of such visits, the degree of care required

to be observed for their safety is higher. I, therefore, endorse the

findings recorded by Thakur J., that judged in the above

backdrop, it is evident that the occupiers/appellants in the present

case had showed scant regard both for the letter of law as also

the duty under the common law to care for the safety of their

patrons. I also further agree with the view that the occupiers not

only committed deviations from the sanctioned building plan that

heightened the risk to the safety of the visitors but continued to

operate the cinema in contemptuous disregard for the

requirements of law and in the process exposed the cine goers

to a high degree of risk to their lives which some of them

eventually lost in the incident in question.

8. Far from taking any additional care towards the safety

of the visitors to the cinema, the occupiers asked for permission

to place additional seats that further compromised with the

Page 276 276

safety requirements and raised the level of risks to the patrons.

There is much substance in the view taken that the history of

litigation between the occupiers on the one hand and the

government on the other regarding the removal of the additional

seats permitted and their opposition to the concerns expressed

by the authorities on account of increased fire hazards as also

their insistence that the addition or continuance of the seats

would not affect the safety requirements of the patrons/cine

goers clearly showed that the owner of the cinema house were

more concerned with making a little more profit out of the few

additional seats that were added to the cinema in the balcony

rather than maintaining the required standards of safety in

discharge of the common law duty but also under the provisions

of the Delhi Cinematograph Rules,1953 (for short ‘DCR 1953’).

9. It is no doubt true which was urged on behalf of

accused-appellants that the incident in question which resulted in

death of 59 persons in the fire that broke out was caused by the

fire which started from the Delhi Vidyut Board Transformer which

was poorly maintained and shabbily repaired by the Delhi Vidyut

Board officials in the morning of 13

th

June, 1997. It was urged that

Page 277 277

the causa causans i.e. the cause of all causes for the loss of

human lives thus was the transformer that caught fire because of

the negligence of the DVB officials who did not even have a

crimping machine to repair the transformer properly. The

absence of oil soaking pit in the transformer room was also a

reason for the oil to spill out from the transformer room to spread

the fire to the parking area from where smoke containing lethal

carbon monoxide rose, and due to chimney effect , entered the

hall to cause asphyxiation to those inside the balcony. It was,

therefore, urged on behalf of the accused-appellants/cinema

house owners that there was no evidence that any death had

taken place inside the balcony which proved that most if not all

the patrons sitting in the balcony had exited from that area but

died on account of the poisonous effect of the gas enough to kill

human being within minutes of exposure. Placing reliance on

the ratio of the decision of this Court in the case of Kurban

Hussein’s case reported in 1965 (2) SCR 622, it was no doubt

submitted that the causa causans in the case at hand was the

fire in the DVB transformer and not the alleged deviations in the

Page 278 278

building plan or the sitting arrangements or the obstructions in

the stair case that led out of the cinema precincts.

10. In fact, learned counsel representing the CBI Mr. Harish

Salve and the counsel representing AVUT Mr. KTS Tulsi accepted

the position that while there was no quarrel with the proposition

that death must be shown to have occurred as a direct,

immediate or proximate result of the act of rashness or

negligence, it was not correct to say that the deaths in this case

had occurred merely because of the fire in the transformer. In

fact, failure of the victims to rapidly exit from the smoke filled

atmosphere in the balcony area because of the obstructions and

deviations proved at the trial was the real, direct and

immediate cause for the death of the victims in the instant case

who would have safely escaped the poisonous carbon monoxide

gas only if there were proper gangways, exits, emergency lights

and alarm system in working condition and human assistance

available to those trapped inside the hall. I see no reason to

differ or disagree with this finding so as to take a different view

from what has been taken by Hon’ble Justice Thakur who has

Page 279 279

upheld the findings of the trial court and the High Court on these

aspects.

11. Thus there appears to be two features in this context

which need to be addressed and the first one is that the victims

in the present case did not die of burn injuries but all of them died

because of asphyxiation on account of prolonged exposure to

poisonous gases that filled the cinema hall including the balcony

area. Whatever may have been the source of fire as to whether

it was caused by the DVB transformer or otherwise, the causa

sine quo non was that there would have been no smoke possible

without fire; the proximate cause was the smoke in the balcony

area. Had there been no smoke in the balcony area, there would

have been no casualties; that is not however the same thing as

saying that it was the fire or the resultant smoke that was causa

causans. In fact it was the inability of the victims to move out

of the smoke filled area which was the direct cause of their death.

Placed in a smoke filled atmosphere anyone would distinctively

try to escape from it to save himself. Therefore, if such escapes

were delayed or prevented, the causa causans for death was

Page 280 280

not the smoke but the factors that prevented or delayed the

escape of cine goers from the

smoke filled area which was the cinema house which got

converted into a gas chamber.

12. I find sufficient substance and force and hence agree

with the view taken by Hon’ble Justice Thakur that even if there

had been adequate number of exits, gangways and all other

safety measures in place but the exits had been locked

preventing people from escaping, the cause of death in such

event would be the act of preventing people from fleeing/exiting

from the smoke filled hall which may be depending upon whether

the act was deliberately intended to cause death or unintended

due to negligence amounting to culpable homicide amounting to

murder which was an act of gross negligence punishable under

Section 304 A. An hypothetical case has rightly been relied upon

to infer that where instead of four exits required under the

relevant rules, the owner of a cinema had provided only one exit,

that would have prevented the patrons from moving out of the

hall rapidly from the smoke filled atmosphere. Thus, the cause of

Page 281 281

all causes termed as ‘causa causans’ would be the negligent act

of providing only one exit instead of four required for the purpose.

In such an eventuality, it would make no difference whether the

fire had started from a source within the cinema complex or

outside or whether the occupiers of the cinema were responsible

for the fire or someone else. Thus if failure to exit was the

immediate cause of death which is the view taken by learned

Justice Thakur and I agree, that the same would constitute the

causa causans and hence I see no reason to deviate from the

view taken as I find sufficient substance and force in the view

that the smoke entered the cinema hall and the balcony but

escape was prevented or at least delayed because of breach of

the common law and statutory duty to care. Reference of the

citations on this point relied upon by Justice Thakur in the

accompanying judgment needs no further reiteration which has

been amply discussed at great length therein.

13. The defence no doubt has relied upon the principle of

benefit of penal immunity that if the person doing an act is acting

under a mistake of fact and the person doing the act in good faith

believes himself to be justified by law in doing it, then he would

Page 282 282

be entitled to protection under Section 52 of the IPC which states

“that nothing is said to be done or believed in “good

faith” which is done or believed without due care and

attention” would incur penal consequences.

14. The use of expression “good faith” in this context

necessarily brings in the question whether the person concerned

had acted with due care and caution. If they had not, part (b) of

Section 79 IPC would have no application to the case. In this

context, it is difficult to overlook the evidence addressed by the

prosecution/C.B.I. Thus the view taken by Justice Thakur that due

care for the safety of the patrons was cast upon the two

appellants Ansal Brothers fell upon them which they failed to

comply as the evidence adduced at the trial and the concurrent

findings recorded by the courts below have established the

breach of the duty in several respects which include absence of

any public address system to warn the viewers of the cinema

inside the cinema hall in the event of any emergency which was a

part of the duty to care which was grossly breached by the

occupiers/appellants herein. This duty was a continuing obligation

and had to be strictly discharged in respect of each cinema show

Page 283 283

conducted in the theatre. The grant of license or its renewal by

the licensing authority did not in any manner relieve the

occupiers of that obligation. Similarly, the requirement that the

cinema house must have had emergency lights, fire extinguishers

and that the occupiers must have provided help to the viewers in

case of any emergency ensuring rapid dispersal from the

enclosed area, were obligations which were implicit in the

issuance and renewal of cinematograph license. Breach of all

these obligations could not be justified on the ground that a

license was granted or renewed in favour of the owners/licensee

and no matter what, the duty to care towards the safety of the

patrons was grossly neglected by the theatre owners/ the

accused appellants. Failures in the event of mishap like the one

at hand on account of the occupiers to discharge their legal

obligations to take care for the safety of the patrons thus

cannot be held to be immune

from prosecution simply because a license to exhibit the films

had been granted or renewed from time to time. The test of

ordinary prudence applied to such proved attendant

Page 284 284

circumstances thus can help the court to determine whether an

act or omission was in good faith or otherwise.

15. Thus, the finding recorded in the judgment by Thakur J.,

to the effect that the fundamental obligation and duty to care at

all times rested with the occupiers of the cinema house and the

licensee thereof is fit to be upheld. In discharge of the duty the

appellants/owners are surely not entitled to argue that so long

as there was a license in their favour, they would not be

accountable for the loss of life or limb of anyone qua whom the

occupiers/owners owed that duty. The duty to care for the safety

of the cine goers even independent of the statutory additions

made to the same , required the occupiers to take all such steps

and measures which would have ensured quick dispersal from

the cinema building of all the viewers inside the premises in the

event of an emergency. But apart from that, a sitting plan which

was in breach of the statutory provisions and compromised the

safety requirement prescribed under the DCR 1953, could hardly

support a belief in good faith that exhibition of films with such a

plan was legally justified. That is so especially when the repeal

of notification dated 30

th

September 1976 by which Uphaar was

Page 285 285

permitted 100 more seats was followed by a demand for removal

of the additional seats. Instead of doing so the appellants/owners

challenged that demand in a writ petition before the High Court of

Delhi in which the High Court directed the authorities to have a

fresh look from the standpoint of substantial compliance of the

provisions of the Cinematograph Act. The High Court observed

and directed the administration to apply their mind to the

additional seats with a view to determine which of them have

contravened which rules and to what extent. It was observed

that compliance with the rule were to be substantial and not rigid

and inflexible. If while carrying out the above directive, the

authorities concerned turned a blind eye to the fundamentals of

the rules by ignoring the closure of the right side exit and

gangway prescribed as an essential requirement under DCR

1953, they acted in breach of the rules and in the process

endangered the safety of the cinema viewers. The cinema

owners had opposed the removal of the additional seats even

when the respondent-authorities in the writ petition had

expressed concerns about the safety of the patrons if the

additional seats were not removed which removal would have by

Page 286 286

itself resulted in restoration of the right side gangway. However,

the authorities also ought to have insisted on the restoration of

the right side exit by removal of the eight seaters box which was

allowed in the year 1978 ostensibly because with the right side

gangway getting closed by additional seats occupying that space,

the authorities considered the continuance of the right side exit

to be of no practical use.

16. In the wake of the aforesaid concurrent findings, the

question looms large as to why the High Court interfered with

the quantum of punishment imposed by the trial court which had

awarded a sentence of two years to the accused appellants but

was reduced by the High Court to a period of one year without

any reason as I cannot be unmindful of the legal position that the

scope of interference on the question of sentence and with the

quantum of punishment awarded by the High Court is

undoubtedly limited to cases where the sentence imposed is

manifestly inadequate and which the Court considers such

reduced punishment tantamount to no punishment or illusory.

Page 287 287

17. On a perusal of the ratios of cases referred to on this

point specially in the matter of Sham Sunder vs. Puran and

Anr. (1990) 4 SCC 731, it has been held that in a case where the

sentence imposed by the High Court appears to be so grossly and

entirely inadequate as to involve a failure of justice, this Court

would be justified in interfering and enhancing the sentence and

hence the period undergone awarded by the High Court was

increased to a period of five years in a case under Section 304

Part I IPC considering the nature of offence committed by the

accused as this Court has unequivocally held that in criminal

cases, awarding of sentence is not a mere formality and

whenever this Court is of the view that the sentence awarded is

wholly disproportionate to the crime, it would be justified in

substituting it with a sentence of higher degree and quantum.

18. It has been held that where the statute has given the

Court a choice of sentence with maximum and minimum limit

presented, an element of discretion is surely vested with the court

but this discretion cannot be exercised arbitrarily or whimsically.

It will have to be exercised taking into consideration the gravity

Page 288 288

of offence, the manner in which it is committed, the age, the sex

of the accused, in other words the sentence to be awarded will

have to be considered in the background of the fact of each

case and the Court while doing so should bear in mind the

principle of proportionality that the sentence awarded should be

neither excessively harsh nor ridiculously low. This was the view

expressed by a three Judge Bench of this Court delivered in the

matter of Deo Narain Mandal vs. State of U.P. (2004) 7 SCC

257, wherein the trial court had awarded a maximum sentence

of two years R.I. for an offence punishable under Section 365 IPC

but the High Court reduced the sentence to the period undergone

(40 days). A bench of three Judges of this Court intervened in

the matter on the ground that the sentence awarded was wholly

disproportionate to the crime and hence substituted a sentence of

six months R.I. Similarly, the ratio of the cases already referred

to by Justice Thakur in his judgment viz. State of U.P. vs. Shri

Kishan (2005) 10 SCC 420; State of M.P. vs. Ghanshaym

Singh (2003) 8 SCC 13 and State of M.P. vs. Sangaram and

Ors. AIR 2006 SC 48 unequivocally have laid down that where

sentence is wholly inadequate, the same may be enhanced which

Page 289 289

has to be commensurate with the gravity of the offence so that

it may not amount to failure of justice. In all these cases, when

this Court found the sentence awarded by the High Court to be

wholly disproportionate to the gravity of offence and considered

imprisonment of a longer period which befitted the gravity of the

offence committed by the accused, it enhanced the quantum of

sentence.

19. It is most certainly true that the award of punishment

to an accused in a case wherein the guilt of the accused is

proved, is a serious and important matter and the same needs

to be guided by sound logic uninfluenced by any emotional or

impulsive outburst or misplaced sympathy that more often than

not, manifest itself in the form of a sentence that is either

much too heavy and oppressive or wholly in commensurate

considering the gravity of the offence committed. Courts in any

view have to avoid such extremities in their approach specially

when there is no legislative compulsion or statutory prescription

in the form of a minimum sentence for an offence committed.

Page 290 290

20. Bearing the aforesaid parameters and the principles in

mind and in the light of findings recorded concurrently and

approved by us, I have not been able to convince myself or feel

persuaded or find a valid reason why the High Court should have

reduced the sentence of two years awarded by the trial court by

reducing it to one year in the wake of the finding recorded by

us also as we have held that all the accused owed a duty of care

to the deceased persons since accused Sushil Ansal and A-2

Gopal Ansal were in actual control of the premises and took active

participation in the day to day management of the theatre. They

were the actual decision makers without whose approval no action

could be undertaken in the premises. A-1 was the licensee of the

cinema and had the obligation to run it with due and reasonable

care. A-2 as the Managing Director of Ansal Properties &

Industries Ltd had exercised complete control over the

management of the theatre. They were the actual beneficiaries of

the establishment who were making out financial gains by

charging the public. As persons in charge of a public

entertainment centre which caters to the general public they

owed a duty of care to maintain a safe environment. It would be

Page 291 291

indeed very far fetched to contend that a person who maintains a

cinema hall and charges the public a fee for the facility, does not

owe a duty of care to ensure that the public can enjoy the facility

in a safe environment.

21. In the present case every rule in the book had been

violated with impunity, whether it be the maintenance of the

transformer, illegal user of the area around the transformer, closure of

gangways and exit in the balcony. Not only that the transformer was

not kept in a safe environment, the area around the transformer had

been filled with combustible substances so as to aggravate the danger.

The public announcement system, emergency lights etc which are the

most basic requirements in the cinema hall were non functional. On

top of that, the illegal closure of exit in the balcony ensured that

patrons could not make a speedy exit. All these decision were taken by

A-1 and A-2 who were in active control of the theatre and the premises.

In such a scenario it can easily be said that not only were they

negligent but the negligence was of such a high degree that no

reasonable man would have undertaken such a course specially the

ones who were dealing in the business of running a cinema theatre

where the lives of public at large were involved day in and day out as

visitors to the cinema show.

Page 292 292

22. The death of the deceased in the tragedy occurred due

to the trap created for them by A-1 and A-2 along with the other

actors who helped them achieve that end. Had the layout of the

balcony not been changed from the sanctioned plan to such an

extent that access to the right hand exit was

totally blocked, this tragedy would not have taken place. Due to the

blockage of the right hand exit the patrons were forced to use both

the left hand exits which opened on the smoke filled left hand stairs.

23. The conduct of A-1 and A-2/respondents in these appeals

was thus in total disregard of all the safety rules meant to contain a

tragedy of this kind coupled with the knowledge of the 1989 fire

which had taken place earlier in the Uphaar theatre. The culpability

of the accused thus clearly brings them within the four corners of

Section 304 as it lies in the knowledge that such a tragedy was

possible and in fact had taken place in 1989 in an identical manner.

But rather than taking stock of the situation they chose to carry on

in the same manner as before in reckless disregard to the

consequence.

24. This shows that the appellants / respondents herein

Sushil Ansal and Gopal Ansal had knowledge that the

Page 293 293

transformer located on the ground floor was dangerous

to the paying patrons visiting the cinema. This incident

clearly established that the owners/ directors / Licencee and

management were aware of

the fact that the transformers posed a potential danger of a major

fire and of the hall and balcony getting smoked up ‘chimney

effect’. Inaction on the part of A-1 and A-2 despite the pendency

of case regarding suspension of their license continued although a

major fire had broken out on 06.07.1989 at 11.40 P.M. in identical

circumstances when both the transformers i.e. the transformer of

the Cinema as well as the transformer of DESU burnt and smoke

reached right up to the balcony, but no step was taken to rectify

the situation. The Licence was neither revoked nor was the

matter brought to the notice of Hon’ble High Court.

FAULTY REPAIR OF THE TRANSFORMER

25. Besides the above, it has further come out in evidence

led by the CBI and referred to extensively, that the cable end

socket of the B phase of LT supply, cable of the transformer had

not been fixed properly by A-9 (B M Satija), A-10 (A.K. Gera) & A-

Page 294 294

11 (Bir Singh) of DESU. The same had been fixed by hammering

and not by crimping machine or any other proper system as

provided under BIS 1255, 1983. Thus the short circuit resulting in

the fire could have been avoided had the cables been properly

repaired. As per the Report of electrical Inspector NCT of Delhi

Shri K.L. Grover (EX. PW 24/A), the cable and socket of “B”

phase of LT supply cables had not been fixed properly as the same

appeared to have been fixed by hammering and not by the

crimping machine or any other proper system. In his deposition,

he has further clarified that the LT PVC cable socket was not

crimped as required under the provision of IS Code 1255 of 1983

r/w sub rule 2 of Rule 29 of Rule 1956. The HT circuits were not

found provided with protection system. The OCB were acting like

as manual isolator and not as OCB’s as they could not have been

tripped automatically in case of abnormal condition of supply. The

1000 KVA transformer was not having sufficient clearances as

required under IS 1886/1967. No arrangement for draining out of

transformer oil in case of damage/rapture to the transformer was

found which is mandatory as per the provision of IS 1886/1967 &

IS 10028/1981.

Page 295 295

26. As is clear from the deposition of PW48 S K Bahl (Addl

Chief Engineer DVB), the staff of the DVB were obliged to follow

the BIS standard which provided crimping for fixing of loose

cables. He deposed that the Crimping Machines are provided for

the purpose of crimping the socket with LT leads of the

transformer. This was only to secure that no loose connections are

made which could give rise to high temperature resulting in

burning of leads at times. ….It was obligatory for the staff of DVB

to follow the Indian Standards & DVB Manual for both installation

as well as maintenance of substation equipment.

27. Thus the evidence adduced by the appellant CBI and

referred to in great detail in support of their appeal establishes

that due to the faulty repair of the transformer the connection of

the cable end socket of the B phase of LT supply remained loose

which resulted in sparking. This coupled with 1000 KVA current

which was passing through these bus bars led to excessive

heating. This caused a cavity on the B phase and melting of

the upper portion of cable end socket. Thus the cable and socket

came out from the bolt portion and hit the radiator fin of the

Page 296 296

transformer. The live conductor of the cable (whose insulation had

melted due to the heating) formed an opening in the radiator fin

and the transformer oil gushed out and caught fire. Reports of KV

Singh EE Electrical PWD (PW 35/A), Report of Electrical Inspector,

NCT, Shri K.L. Grover (PW 24/A), Report of Dr. Rajinder Singh

(CFSL) (PW 64/B)] have been referred to by the appellant CBI in

their appeal. The above findings thus have rightly been affirmed

by the Hon’ble High Court in the impugned judgment.

28. I have further taken note of the fact that the

transformer room was not ventilated as per the prescribed BIS

Rules. (Clauses 7.3.1.1, 7.3.1.2, 7.3.1.4, 7.9.3 of the BIS rules). In

fact, the open space above the parapet behind the transformer

room from where smoke could have easily gone outside the

building was closed. Instead of the parapet as reflected in the

sanctioned plan there was a full wall behind the transformer

effectively trapping the fire and the smoke within the building.

The sanctioned plan showed a parapet behind the transformer

room as per PW 15-Y/11 which is a low wall built along the edge of

a roof or a floor not more than 3ft. in height” in the Building

Page 297 297

Byelaws 1959. So the height of the wall behind the transformer

could not have been more than 3 feet according to the sanction

plan. But as is clear from the various reports there was full

fledged wall behind the transformer. The Report of MCD

Engineers (Ex. PW2/A) also states that in the rear a pucca wall

marked A-B in the existing stilt plan has been constructed in full

height of building whereas this wall in stilt floor has been shown

open upto a height of 12 ft in the sanctioned plan. This was a

serious violation against the sanctioned building plan. The same

was reiterated in Report of PWD Engineers (EX PW29/A) which

states that outer wall behind HT/LT room was constructed up to

the First Floor height instead of 3ft height. In addition PW2 R.N.

Gupta (EE) MCD and PW 29 B. S.Randhawa (AE) PWD have also

deposed that outer wall behind HT transformer and LT room was

found constructed upto the first floor height instead of 3 feet

height.

29. I have further noted that A9 to A11 conducted improper

repair of the DVB Transformer in the morning of 13.6.97 without

the help of crimping machine which resulted in loose

Page 298 298

fitting/connections causing sparking in between the B Phase of the

transformer, causing a hole in the radiator fin resulting in leakage

of transformer oil which caught fire on account of the rise in the

temperature due to the sparking and the improper repairs of the

transformer which is established from the Repair Report Ex PW

108/AA, EX PW 40/C: the entry of repair, PW 40 PC Bharadwaj AE

DVB & PW 44 Bhagwandeen. The contention of B. M. Satija that he

was not posted in substation zone 1601 is incorrect as is clear

from Ex. PW 48 E which is a letter from S.K. Bahl Addl. Chief

Engineer to SP CBI (PW 48) dated 30.07.97 in reply to query from

SP CBI. In reply to query No. 3, he clearly stated that B.M. Satija

was entrusted the work of Substation zone 1601 of Dist. R.K.

Puram. Uphaar Cinema which substation fell under jurisdiction of

zone 1601, Capital work order 19.5.1997 vide (Ex PW 43/DC).

CULPABILITY OF THE SUPERVISOR OR INSPECTOR

30. In the present case, A-9 to A-11 i.e. the Inspectors and

the fitter of DVB were in charge of the maintenance of the

transformer which is a hazardous object. As electricians they

should have known that by its very nature a transformer of such

Page 299 299

high capacity stored inside a building required proper

maintenance and any lapse on their part would endanger the life

of all the occupant of the building and neighbourhood. The callous

manner of repair by these accused resulted in the outbreak of fire

which finally resulted in a mass tragedy. A-15 is the Divisional

Officer with DFS. It was his duty to inspect the building for the fire

hazards and ensure that it was a safe place for the public. The

illegalities and the violations committed by the management of

the Cinema would not have been possible without willful

dereliction of duty by this accused.

31. Thus the very persons who had been deputed to keep

the public safe connived with the management to turn a blind eye

to the hazards created in the building. The conduct of this accused

is nothing short of reckless which finally led to the death of 59

persons as the transformer in question i.e. D.V.B. Transformer did

not have following safety measures at the time of inspection:

i)The L.T. Side cables from the bus bar did not have clamping

system or any support to the cables.

Page 300 300

ii)The earth cable of the transformer had been found

temporarily fitted with the earth strip i.e. twisting of earth

cable.

iii)There was no cable trench to conceal the cable.

iv)H.T. Panel Board of transformer did not have any relay

system to trip the transformer in case of any fault.

v)The Buchholtz Relay system was not fitted on the

transformer.

vi)Temperature meter was not found fitted on the transformer.

32. The physical examination of D.V.B. transformer reveals

that the cables on bus bars on L.T. side did not have check nuts.

Except one lower terminal of phase Y and neutral terminal. The

check nut of neutral terminal was found in loose condition. The

blue phase single cable at the top along with cable-end-socket

(detached cable) fell down on radiator fin due to constant arching

sparking at nut bolt portion on bus bar, decoiling effect of cable

and weight of cable. All coupled together led to eating away of

metal of cable and socket resulting in U shape cable socket end.

The physical examination of D.V.B. transformer reveals that the

cables on bus bars on L.T. Side did not have check nuts. Except

Page 301 301

one lower terminal of phase Y and neutral terminal. The check nut

of neutral terminal was found in loose condition. The blue phase

single cable at the top along with cable-end-socket (detached

cable) fell down on radiator fin due to constant arching sparking at

nut bolt portion on bus bar, decoling effect of cable and weight of

cable. All coupled together led to eating away of metal of cable

and socket resulting in U shape cable socket end.

33. In fact PW 48 S K Bahl (Addl. Chief Engineer DVB)

deposed that as far as substation staff is concerned DVB has Asst.

Electric Fitters/ Sr. Electric Fitter who actually carry out the

maintenance depending upon the extent of damage caused to

such equipment. The immediate officer for getting such work

done is the Junior Engineer who has specific jurisdiction of the

area as fixed by his officers. The Inspector/JE in their respective

areas were responsible for 100% check of the substation.

34. It had come in the evidence that Crimping Machines are

provided for the purpose of crimping the socket with LT leads of

the transformer. This is only to secure that no loose connections

are made which could give rise to high temperature resulting in

Page 302 302

burning of leads at times. One transformer of 1000 KVA capacity

was existing in one of the transformer rooms at Uphaar complex

which was catering to the supply of adjoining localities of Green

Park, apart from meeting part of the load of Uphaar complex were

some of the connections have been allowed. It is obligatory for the

staff of DVB to fllow the Indian Standards & DVB Manual for both

installation as well as maintenance of substation equipment.

35. PW 73 Y. P. Singh (Retd.) Member Technical DVB also

deposed that his post was the highest post on technical side in

DVB. He went to Uphaar cinema building on the day the fire

incident took place and inspected the place and he deposed that

as per the sanction order crimping machine was a major factor.

Crimping machine is never kept in sub station as a stock. It is

issued to the person who has to carry on the repairs. It is incorrect

that the effect of hammer & dye is the same as that of crimping

machine. In a crimping machine the worker is in a position to put

required force while crimping the socket, while in case of dye &

hammer the force applied is always arbitrary. A.K. Gera A-10

Gera has contended that he was assigned Zone 1603 and Uphaar

Page 303 303

was under 1601 therefore he just accompanied Satija and Bir

Singh to Uphaar and not responsible for the repair of the

Transformer. In his deposition at PW40 has clarified that the

complaint was attended to by whoever was available at the time

of complaint and not limited to the persons assigned to that zone.

Zones are demarcated for maintenance but for breakdown there

is no bifurcation.

36. PW44 Bhagwan Deen Mazdor DESU deposed that on

13.6.97 he was working as Mazdoor in DESU at Sector 6 R.K.

Puram DESU. On 13.6.97 and had accompanied B. M. Satija,

Inspector A.K. Gera & Bir Singh Sr. Fitter and went to Uphaar

cinema at about 10-10.30 AM. He had taken tool box along with

him under the instruction all the three above mentioned officials.

(The witness correctly identified all the accused in the court). Bir

Singh opened the shutter of the transformer room where the DVB

transformer was installed. The socket was changed with the help

dye and hammer as crimping machine was out of order by all the

three mentioned above i.e. Bir Singh, Satija & A.K. Gera. After

changing the socket the lead with socket was connected Bus Bar.

Page 304 304

The entire repair work was finished within 45 minutes

approximately. After replacing the socket and connecting to Bus

Bar the switch was put on and thereafter electricity supply was

restored.

37. In addition to the aforesaid evidence, A-15 H.S. Panwar-

Delhi Fire Service was responsible for issuing NOC from the fire

safety and means of escape point of view. Though no fire safety

and means of escape was available as per the standard laid down,

in the Uphaar Cinema on the date of inspection i.e. 12.5.97 &

15.5.97 still NOC was issued. On the basis of this NOC, Temporary

License was issued by the Licensing Authority. (Ex 31/DB & Ex

31/DC).

38. As a consequence of the aforesaid findings based on the

analysis of the evidence recorded hereinbefore, sentence of two

years awarded by the trial court in my view was not fit to be

interfered with by the High Court and for this reason the appeal

preferred by the AVUT is fit to be allowed to the extent that

although the charge under Section 304 A may not be allowed to

be converted into 304 Part II by remanding the matter for re-trial

Page 305 305

after the passage of more than 16 years, yet the sentence may

not be reduced which trivializes or minimises the gravity of

offence to a farce whereby justice to the cause appears to be a

mirage, mockery or a mere tokenism. In my considered opinion,

the High Court has indulged in misplaced sympathy by reducing

the sentence of two years awarded by the Trial Court to one year

in spite of its finding upholding the charge of gross criminal

negligence under Section 304A and other allied Sections which is

grossly inadequate considering the nature and gravity of offence

committed by the appellants as also the finding that I have

recorded hereinabove due to which their conviction under

Section 304 A, 337, 338 read with 36 IPC has been upheld by us.

In our opinion, the extent of the sentence of two years was thus

not fit to be interfered with.

39. Nevertheless, the fact remains that 16 years have

elapsed in the process of conclusion of the trial and pendency of

the appeal and the appellant No.1 Sushil Ansal is now aged more

than 74 years and even if the appellants are subjected to

undergo the maximum sentence of two years, it can hardly be

held to be sufficient so as to match with the magnitude and

Page 306 306

gravity of offence for giving rise to the catastrophe in which 59

persons lost their lives due to reckless and gross criminal act of

negligence at the instance of the appellants. Therefore, in an

offence of this nature which can be put some what on par with the

well-known tragic incident commonly known as ‘Bhopal Gas Leak

Tragedy’, compensation of high quantum along with sentence of

imprisonment may meet the ends of justice which must be

punitive, deterrent and exemplary in nature. However, in this

context, I also find force in the view taken by the High Court of

Bombay in the matter of State of Maharashtra vs. Chandra

Prakash Neshavdev reported in 1991 Cr.L.J. 3187, wherein it

observed that it is an essential necessity of public policy that

accused who have committed crimes must be punished when

facts are fresh in the public mind. If for whatever reasons, the

judicial process had dragged on for an abnormal point of time and

the accused at that stage is faced with an adverse verdict, it

would not be in the interest of justice to impose at this point of

time jail sentence on the accused however serious the facts of the

case are. Moreover, the tragic incident in this matter was the

consequence of a cumulative negligence at the instance of the

Page 307 307

licensee Sushil Ansal and its executing authority Gopal Ansal as

also due to the fault in the transformer of the Delhi Vidyut Board

(DVB) and negligence of their employees which was not repaired

and maintained properly as discussed hereinbefore and the

accused appellants did not make a cautious and realistic attempt

or used their foresight to foresee such an incident as ultimately

the aim of the appellants Sushil Ansal and Gopal Ansal in Criminal

Appeal Nos.597 and 598 of 2010 was to make monetary gain by

running the theatre.

40. Hence, I am of the view that the interest of justice to

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 alongwith the DVB which also cannot absolve itself from

compensating the victims of Uphaar tragedy represented by the

AVUT.

Page 308 308

41. Thus, while I uphold the conviction and sentence of the

appellant No.2 Gopal Ansal in Criminal Appeal No.598 of 2010 who

was in fact conducting the business of running the Uphaar

Theatre and had greater degree of responsibility to ensure safety

of the cinema viewers, the appellant Sushil Ansal in 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 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.

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

Page 309 309

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.

43. In view of the candid, comprehensive, unblemished

findings recorded by the trial court, High Court and upheld by us

after intensive and threadbear scrutiny of the evidence led by

the prosecution as also the accused respondents in the Criminal

Appeal Nos.600-602 of 2010 preferred by the AVUT and Criminal

Appeal Nos.605-616 of 2010 preferred by the CBI, I am of the

view that the appeals preferred by the AVUT and CBI are fit to be

allowed and no leniency deserves to be shown while awarding

Page 310 310

maximum sentence prescribed under Section 304 A and other

allied sections. Nonetheless one will also have to be pragmatic

and cannot ignore that the enhancement of sentence of one year

to two years to the accused cannot bring back those who suffered

and lost their lives in the tragic and the horrific incident. Thus,

while I am fully conscious and share the intensity of the agony and

deep concern of the AVUT which has diligently prosecuted the

appeal up to the highest Court, I am of the view that the ends of

justice to some extent would be met by not merely awarding

them sentence of imprisonment which I do by dismissing their

appeals against the judgment and order of the High Court by

which a sentence of one year has been awarded to all the

accused, but also by enhancing their sentence but substituting it

with substantial amount of fine to be used for the public cause in

the memory of the Uphaar victims.

43. Hence, in so far as the Criminal Appeal No.600-602 of

2010 preferred by the AVUT/Victims Association and the

prosecution represented by CBI bearing Criminal Appeal Nos.605-

616 of 2010 are concerned, I deem it just and appropriate to allow

Page 311 311

both the appeals by enhancing their sentence upto the maximum

period of two years prescribed under IPC for offence under Section

304A but in lieu of the additional period of sentence of one year, a

substantial amount of fine to be specified hereinafter is directed

to be paid by the appellants Sushil Ansal, Gopal Ansal and DVB in

view of gross negligence on the part of their employees in order to

compensate the charge of criminal negligence established

against these accused persons. Hence, the enhanced period of

sentence of one year shall be substituted by imposition of the

amount of fine to be paid by them and I do so by placing reliance

on the ratio of the order passed in the well known case of Bhopal

Gas Leak Tragedy wherein the entire criminal case itself had been

quashed by way of settlement against the accused and the

sentence was substituted with heavy amount of fine which was

paid to the victims by way of compensation. However, in this

matter, the appellants have already stood the test of a long drawn

trial wherein they have been convicted and sentenced which I

have upheld and hence they shall undergo remaining period of

sentence imposed under Section 304A along with the fine which

we propose to impose in the appeals preferred by AVUT and CBI.

Page 312 312

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. 50 crores each and 100 crores

in all and shall be paid by way of a demand draft issued in the

name of the Secretary General of the Supreme Court of India

which shall be kept in a fixed deposit in any 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 alongwith a super speciality department/ ward

for burn injuries shall be constructed to be known as the ‘Victims

Page 313 313

of Uphaar Memorial Trauma Centre’ or any other name that may

be suggested by the AVUT/Uphaar Victims Association. This

trauma centre shall be treated as an extension centre of the

Safdarjung Hospital, 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 alongwith a representative of

the 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.

Page 314 314

45. In case, the accused appellants/respondents herein

Sushil Ansal and Gopal Ansal fails to deposit the fine as ordered,

the land alongwith Uphaar Theatre which is the accident site and

is still existing at Green Park and has been seized shall be put to

public auction under the supervision of the Building Committee

referred to hereinbefore and the proceeds thereof shall be spent

for constructing the Trauma Centre. It will be open for the

Building Committee and/or the AVUT in particular to seek such

other or further direction from this Court as and when the

necessity arises in regard to the construction operation and

administration of the Trauma Centre. The appeals bearing

Criminal Appeal Nos.600 to 602 of 2010 preferred by AVUT and

the appeal preferred by the CBI bearing Criminal Appeal Nos.605

to 616 of 2010 thus stand allowed in terms of the aforesaid order

and direction.

46. In so far as the other connected Criminal Appeals are

concerned, I respectfully agree and affirm the judgment and order

passed by Hon’ble Thakur, J. Thus, the appeals bearing Nos.597

and 598 of 2010 preferred by the appellants/respondents Sushil

Page 315 315

Ansal and Gopal Ansal are dismissed except that the sentence

imposed on the appellant No.1 Sushil Ansal is reduced to the

period already undergone considering his advanced age. The

other appeals preferred by the officers of DVB bearing Nos.617 to

627 of 2010 and 604 of 2010 and the employee of Fire Service

bearing Appeal Nos.599 of 2010 are also dismissed as already

ordered by Hon’ble Thakur, J. with which I agree. Consequently,

the appellants shall surrender to serve out the remaining part of

their sentence and in view of the appeals of AVUT and CBI

bearing Appeal Nos.600 to 602 of 2010 and 605 to 616 of 2010

having been allowed, who are the respondents Sushil Ansal and

Gopal Ansal in the appeals preferred by AVUT and the CBI, shall

deposit the amount of fine imposed hereinbefore expeditiously but

not later than a period of three months from the date of receipt of

a copy of this judgment and order.

………………………… J

(Gyan Sudha Misra)

New Delhi,

Page 316 316

March 05 , 2014

Page 317 317

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITION

CRIMINAL APPEAL NO.597 OF 2010

Sushil Ansal …Appellant

Versus

State Through CBI …Respondent

(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010,

604/2010, 605-616/2010 and 617-627/2010)

ORDER BY THE COURT

In the light of separate opinions delivered by us in the

above-mentioned matters, we pass the following order:

(1)Criminal Appeal No.617 of 2010 (wrongly numbered as

Criminal Appeals No.617-627/2010) filed by B.M Satija,

Inspector DVB and Criminal Appeal No.604 of 2010 filed by

Bir Singh, Senior Fitter, DVB are partly allowed and their

convictions altered to Sections 337 and 338 read with

Page 318 318

Section 36 of the IPC. The sentence awarded to them shall,

however, remain unaltered.

(2)Criminal Appeals No.597, 598 and 599 of 2010 filed by

Sushil Ansal, Gopal Ansal and Harsarup Panwar respectively

in so far as the same assail/challenge the conviction of the

appellants for offences punishable under Section 304A read

with Section 36 of the IPC and Sections 337 and 338 read

with Section 36 of the IPC shall stand dismissed and their

conviction affirmed.

(3)Criminal Appeals No.607 to 612 and 614 to 616 of 2010

filed by the CBI challenging the orders of acquittal of the

respondents in those appeals shall stand dismissed.

(4)Criminal Appeals No.597, 598 and 599 of 2010 filed by

the appellants in those appeals and Criminal Appeals 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

Page 319 319

convicted appellants in the appeals mentioned above shall

stand referred to a three-Judge Bench.

Registry to place the papers before Hon’ble the Chief

Justice for constitution of an appropriate Bench.

.………………….……….…..…J.

(T.S. THAKUR)

………..…………………..…..…J.

(GYAN SUDHA MISRA)

New Delhi

March 5, 2014