# SUSHIL ANSAL v. STATE THROUGH CBI

- **Citation:** [2014] 9 S.C.R. 571
- **Court:** Supreme Court of India
- **Decided:** 2014
- **Case number:** Criminal Appeal No. 597 of 2010
- **Bench:** T.S. Thakur, Gyan Sudha Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sushil-ansal-v-state-through-cbi-30226
- **Pages:** 209

## Headnote

Constitution of India, 1950:
A
B
Art. 136 - Scope of - The extra ordinary jurisdiction and c
power vested in Supreme Court is not exercised to upset
concurrent findings of fact recorded by the two courts below
on a proper appreciation of evidence but only in those rare
and exceptional cases where the appreciation of evidence is
found to be wholly unsatisfactory causing miscarriage of justice 0
- Similarly, scope of interference by Supreme Court with
quantum of punishment awarded by High Court is limited to
cases where the sentence awarded is manifestly inadequate
and punishment reduced is tantamount to failure of justice -
Constitution of India, 1950 - Art. 21.
E
Penal Code, 1860:
ss. 304-A, 337 and 338 r/w s. 36 and s. 14 of
Cinematograph Act, 1952 -
Gross negligence - Uphar
Cinema tragedy in Delhi - Conviction - Sentence of 2 years F
RI, reduced by High Court to 1 year - Conviction upheld
except of Inspector and Fitter of DVB, whose conviction u/s
304A altered to ss.337 and 338 - There being difference of
opinion as to quantum of sentence, matter referred to larger
Bench - Cinematograph Act, 1952 - s. 14.
G
Criminal Law:
'Rash' or 'negligent' - Meaning of - Explained.
571
H
A
B
c
D
E
F
572
SUPREME COURT REPORTS
[2014] 9 S.C.R.
'Negligence' in regard to use of buildings, particularly,
cinema hall - Liability of occupier(s) - Degree and nature of
care expected of an occupier of a cinema bui81ding -
Explained
Cinematograph
Act,
1952;
Delhi
Cinematograph Rules, 1953) and Delhi Cinematograph
Rules, 1981 - General Clauses Act, 1897 - s.6.
Doctrine of causa causans - Explained - In the instant
case, causa causans was not the fire, but the breaches
committed by the occupiers of cinema and other accused
persons, which prevented or at least delayed rapid dispersal
of cinema viewers, and resulted in the tragedy.
Code of Criminal Procedure, 1973:
s.464 - Error, omission or irregularity in framing of
charge - 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.
Administrative Law:
Safety and security of citizens - Enforcement of relevant
laws - Duty of persons/authorities entrusted with enforcement
of such laws - Emphasised.
Administration of criminal justice:
Flawed investigations and long winding criminal trial -
Brings the case to an uncertain end - Investigation.
The instant appeals were filed by the convicts
G
challenging their conviction and sentence, by the State
challenging the acquittal of four accused and by the
Association of Victims of Uphar Cinema challenging the
acquittal and seeking a retrial of accused persons for
offences punishable u/s 304 (part II) IPC.
H
SUSHIL ANSAL v. STATE THROUGH CBI
573
Disposing of some of the appeals, and referring the
A
matter to a 3 Judge Bench in regard to quantum of
sentence in other appeals, the Court
HELD:
Per Thakur, J:
(i) Scope of a criminal appeal by special leave:
1.1. The jurisdiction to interfere under Art. 136 of the
Constitution of India is extraordinary and the power
vested in the Supreme 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. [para 46] [639-B-D]
Mst. Dalbir Kaur v. State of Punjab 1977 (1) SCR 280 =
(1976) 4 SCC 158; Radha Mohan Singh @ Lal Sahib and
Ors. v. State of U.P. 2006 (1) SCR 519 = (2006) 2 SCC 450;
Raj Narain Singh v. State of U. P. and Ors. 2009
(14) SCR 755 = (2009) 10 SCC 362, Surendra Pal and Ors.
v. State of U.P. and Anr. 2010 (11) SCR 968 = (2010) 9 SCC
399 Amitava Banerjee v. State of West Bengal (2011) 12
SCC 554 and Mohd. Arif v. State (

## Text

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[2014] 9 S.C.R. 571
SUSHIL ANSAL
v.
STATE THROUGH CBI
(Criminal Appeal No. 597 of 2010)
MARCH 5, ·2014
[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]
Constitution of India, 1950:
A
B
Art. 136 - Scope of - The extra ordinary jurisdiction and c
power vested in Supreme Court is not exercised to upset
concurrent findings of fact recorded by the two courts below
on a proper appreciation of evidence but only in those rare
and exceptional cases where the appreciation of evidence is
found to be wholly unsatisfactory causing miscarriage of justice 0
- Similarly, scope of interference by Supreme Court with
quantum of punishment awarded by High Court is limited to
cases where the sentence awarded is manifestly inadequate
and punishment reduced is tantamount to failure of justice -
Constitution of India, 1950 - Art. 21.
E
Penal Code, 1860:
ss. 304-A, 337 and 338 r/w s. 36 and s. 14 of
Cinematograph Act, 1952 -
Gross negligence - Uphar
Cinema tragedy in Delhi - Conviction - Sentence of 2 years F
RI, reduced by High Court to 1 year - Conviction upheld
except of Inspector and Fitter of DVB, whose conviction u/s
304A altered to ss.337 and 338 - There being difference of
opinion as to quantum of sentence, matter referred to larger
Bench - Cinematograph Act, 1952 - s. 14.
G
Criminal Law:
'Rash' or 'negligent' - Meaning of - Explained.
571
H
A
B
c
D
E
F
572
SUPREME COURT REPORTS
[2014] 9 S.C.R.
'Negligence' in regard to use of buildings, particularly,
cinema hall - Liability of occupier(s) - Degree and nature of
care expected of an occupier of a cinema bui81ding -
Explained
Cinematograph
Act,
1952;
Delhi
Cinematograph Rules, 1953) and Delhi Cinematograph
Rules, 1981 - General Clauses Act, 1897 - s.6.
Doctrine of causa causans - Explained - In the instant
case, causa causans was not the fire, but the breaches
committed by the occupiers of cinema and other accused
persons, which prevented or at least delayed rapid dispersal
of cinema viewers, and resulted in the tragedy.
Code of Criminal Procedure, 1973:
s.464 - Error, omission or irregularity in framing of
charge - 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.
Administrative Law:
Safety and security of citizens - Enforcement of relevant
laws - Duty of persons/authorities entrusted with enforcement
of such laws - Emphasised.
Administration of criminal justice:
Flawed investigations and long winding criminal trial -
Brings the case to an uncertain end - Investigation.
The instant appeals were filed by the convicts
G
challenging their conviction and sentence, by the State
challenging the acquittal of four accused and by the
Association of Victims of Uphar Cinema challenging the
acquittal and seeking a retrial of accused persons for
offences punishable u/s 304 (part II) IPC.
H
SUSHIL ANSAL v. STATE THROUGH CBI
573
Disposing of some of the appeals, and referring the
A
matter to a 3 Judge Bench in regard to quantum of
sentence in other appeals, the Court
HELD:
Per Thakur, J:
(i) Scope of a criminal appeal by special leave:
1.1. The jurisdiction to interfere under Art. 136 of the
Constitution of India is extraordinary and the power
vested in the Supreme 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. [para 46] [639-B-D]
Mst. Dalbir Kaur v. State of Punjab 1977 (1) SCR 280 =
(1976) 4 SCC 158; Radha Mohan Singh @ Lal Sahib and
Ors. v. State of U.P. 2006 (1) SCR 519 = (2006) 2 SCC 450;
Raj Narain Singh v. State of U. P. and Ors. 2009
(14) SCR 755 = (2009) 10 SCC 362, Surendra Pal and Ors.
v. State of U.P. and Anr. 2010 (11) SCR 968 = (2010) 9 SCC
399 Amitava Banerjee v. State of West Bengal (2011) 12
SCC 554 and Mohd. Arif v. State (NCT) of Delhi, 2011
(1 O) SCR 56 = (2011) 13 sec 621 - relied on.
(ii) 'Rash' or 'negligent' - meaning of:
1.2. Section 304A IPC makes any act causing death
by rash or negligent act not amounting to culpable
homicide, punishable with imprisonment which may
extend to two years or with fine or with both. The terms
'rash' or 'negligent' appearing in s.304A, IPC have not
B
c
D
E
F
G
H
574
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A been defined in the Code. Negligence signifies the
breach of a duty to do something which a reasonably
prudent man would unde'" the circumstances have done
or doing something which when judged from reasonably
prudent standards should not have been done. The
B 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
injury to the property or the person of the victim. Unlike
c 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
0
negligence arises from the neglect of the civil duty of
circumspection. [para 47-50 and 66] [639-F-G; 640-A-H;
641-A-B; 649-G-H; 650-A}
Empress of India v. /du Beg /LR (1881) 3 All 776 Re:
Nidamarti Negaghushanam 7 Mad HCR 119; Jacob Mathew
E
v. State of Punjab and Another 2005 (2) Suppl. SCR 307 =
(2005) 6 SCC 1; and Dabwali Fire Tragedy Victims
Association v. Union of India and Ors., (2001) 1 ILR Punjab
& Haryana 368 - referred to.
F
Pa/sgraf v. Long Island Railroad, 248 NY 339; Hartwell
v. Grayson Rollo and Clover Docks Limited and Others
(1947) KB 901; Rosston v. Sullivan, 278 Mass 31 (1932):
Helen Upham v. Chateau De Ville Theatre Inc 380 Mass 350
(1980); Mostert v. CBL & Associates, et. Al., 741 P.2d 1090
G (Wyo. 1987); Brown v. B & F Theatres Ltd., (1947) S.C.R. 486;
Wheat v. E. Lacon & Co. (1966) 1 All ER 582, Thomson v.
Cremin (1953) 2 All ER 1185 and H & N Emanuel Ltd. v.
Greater London Council & Anr. (1971) 2 All ER 835, R. v.
Gurphal Singh [1999] CrimLR 582 - referred to.
H
Black's Law Dictionary; Charlesworth and Percy on
SUSHIL ANSAL V. STATE THROUGH CBI
575
Negligence (Twelfth Edition); Clerk & Lindsell on Torts
A
(Eighteenth Edition); Law of Torts by Rattan/a/ Dhirajf.a.I;
"A Textbook of Jurisprudence" by George Whitecross Pato.n
- referred to;
(iii) Difference between negligence in civil actions and in
8
criminal cases:
1.3. 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
C
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. Negligence
can constitute an offence punishable u/s. 304A, IPC only o
if the same is proved to be gross, no matter the word
"gross" has not been used by Parliament in that
provision. [para 67] [650-C-E, q]
R. v. Bateman (1925) 94 L.J.K.B. 79; John Oni Akerele
v. The King AIR 1943 PC 72; R. v. Adomako (1994) 3 All ER
79 - referred to.
(iv) Doctrine of causa causans:
1.4. The second and an equally, important dimension
of the offence punishable u/s 304-A IPC is 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. For an offence u/s 304
A to be proved it is not only· necessary to establish that
E
F
the accused was either rash or grossly negligent but also
G
that such rashness or gross negligence was the causa
causans that resulted in the death of the victim. [para 75
and 79] [655-A, B; 656-D-E]
Kurban Hussein Mohamedafli Rangawal/a v. State of H
576
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A
Maharashtra 1965 SCR 622 =AIR 1965 SC 1616; Suleman
Rahiman Mu/ani v. State of Maharashtra 1968 SCR 515 =AIR
1968 SC 829; Rustom Sherior Irani v. State of Maharashtra
1969 ACJ 70; Ba/chandra @ Bapu and Anr. v. State of
Maharashtra AIR 1968 SC 1319; Kishan Chand v. State of
B
Haryana (1970) 3 SCC 904; S.N Hussain v. State of A.P.
(1972) 3 SCC 18; Ambala/ D. Bhatt v. State of Gujarat (1972)
3 sec 525- relied on.
c
Emperor v. Omkar Rampratap (1902) 4 Born LR 679 -
referred to.
Black's Law Dictionary (Fifth Edition); Advance Law
Lexicon - referred to.
1.5. In cases where negligence is alleged in regard
to use of buildings and structures permanent or
D temporary, the duty to care is fixed on the person or
persons who were occupiers of such buildings or
structures. What is important is whether the premises in
question was sufficien~ly and not exclusively under the
control of defendant/ accused, and for being in such
E
control, ownership of the premises is not a condition
precedent. 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.
F
[para 82 and 84] [656-D-E; 659-A-B]
Wheat v. E. Lacon & Co. (1966) 1 All ER 582, H & N
Emanuel Ltd. v. Greater London Council & Anr. (1971) 2 All
ER 835 - referred to.
(iv) Re:A:>wnership, management and control of Uphaar
G Cinema:
H
and
(v) Whether A-1 and A-2 were occupiers of Uphaar cinema
building:
SUSHIL ANSAL v. STATE THROUGH CBI
577
1.6. In the facts of the case, merely because the A
company was the legal owner of the Cinema premises,
did not mean that the Company and Company alone was
the occupier thereof. The trial court and, so also, the High
Court have both concurrently held that the ownership,
management and control of Uphaar Cinema vested with
B
A-1 and A-2 at all material times, and they were
responsible for all major decisions in regard to
management and affairs of the Uphaar Cinema.
Therefore, the finding that A-1 and A-2 were both
occupiers of the cinema complex as on the date of the c
incident in which capacity they owed a·duty to care for
the safety of the patrons visiting/coming to the premises,
is affirmed. [para 86-90] [660-8, 0, E; 662-G-H]
S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla 2005 (3)
Suppl. SCR 371 = (2005) 8 SCC 89, JK Industries and others D
v. Chieflnspector of Factories and Boilers (1996) 6 SCC 685
- held inapplicable.
(vii) Degree and nature of care expected of an occupier
of a cinema building:
E
1.7. As regards the degree and nature of care
expected of an occupier of a cinema building, two
fundamental principles must be noticed: The first is that
the degree and nature of care expected of an occupier
depends upon the fact situation in which the duty to care
F
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 G
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
H
578
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A
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. In the case of a cinema
hall the nature o'f an occupier's duty to care may, inter
B
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,
c to provide fire fighting systems, alarm systems and to
employ and keep trained personnel on duty whenever an
exhibition of cinematograph is in progress. The obligation
to ensure safety of the invitees is undeniable, and any
neglect of the duty is actionable both as a civil and
0
criminal wrong, depending upon whether the negligence
is simple or gross. [para 92, 101 and 102] [663-G-H; 664A-C; 670-G-H]
Mclenan v. Segar (1917) 2 KB 325 - referred to
E
Winfield & Jolowicz on Tort (Sixteenth Edition) -
referred to.
1.8. Besides, the occupier must also discharge the
duties cast under statutes enacted by the legislature or
F
in Rules and Regulations framed in exercise of powers
delegated under such enactments. A conspectus of the
provisions of the Cinematograph Act, 1952 and the Delhi
Cinematograph Rules shows that the duty to "ensure
safety" of those entering a cinema hall for watching the
exhibition of a film, is cast upon the occupier of the hall.
G In the case of gross negligence, prosecution and
damages may be claimed simultaneously and not
necessarily in the alternative. [para 94, 98 and 103] [665G-H; 666-A; 668-C-D; 671-A]
H
Bhalchandra Waman Pathe v. State of Maharashtra
SUSHIL ANSAL v. STATE THROUGH CBI
579
1968 Mah. L.J. 423 (SC); Bhalchandra @ Bapu and Anr. v.
A
State of Maharashtra, 1968 (3) SCR 766; Municipal Council
of Delhi, Delhi v. Association of Victims for Uphaar Tragedy
and Ors. 2011 (16) SCR 1 = (2011) 14 sec 481- referred to.
Lochgelly Iron & Coal Co. Ltd. v. M'Mullan, (1934) AC
8
1; Queen Empress v. Bhutan /LR XVI All. 472 and Kamr-uddin v. King Emperor 1905 PR 22(Cr) Regina v. David Dant,
169 English Reports (C.C.) 1517 and Rex. v. Pittwood
(1902) 19 TLR 37 - referred to.
Clerk & Lindsell on Torts (Twentieth Edition) - referred C
to.
1.9. In the case at hand the installation of a DVB
transformer within the cinema premises had increased
the degree of risk on account of fire hazard which o
resultantly enhanced the degree of care expected of the
occupiers in maintenance of the safety measures for the
safety of those inside the theatre. The High Court has
held that the DVB transformer, which caught fire due to
short circuit, installed in the cinema building premises E
had been installed against the provision of the Electricity
Rules, and it was in poor mainten.ance on the date of the
incident. [para 30 and 113] [679-E-F; 629-G; 630-B]
Lord Macmillan in Read v. J. Lyons & Co. Ltd. [1947] AC
156; Glasgow Corp v. Muir (1943) AC 448 - referred to.
F
(viii) Whether the accused were negligent and if so,
whether the negligence was gross: [Para 42] [636-D]
1.10. The Courts below have concurrently found that
the occupiers of the cinema building had committed G
several deviations from the sanctioned building plan
apart from breaches of statutory provisions. Even though
the said deviations did not constitute the causa causans
for the death of the victims in the instant case, two
H
580
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A
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
B
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. The occupiers committed several
c breaches of their duty to care and were, therefore,
negligent, that directly contributed to the loss of valuable
human lives. [para .115-117] [681-B-C; 682-G-H; 683-A•C]
Kurban Hussein Mohamedalli Rangawalla v. State of
Maharashtra 1965 SCR 622 = AIR 1965 SC 1616; State
D through PS Lodhi Colony, New Delhi v. Sanjeev Nanda 2012
(12) SCR 88.1 = (2012) 8 SCC 450 - referred to.
1.11. As regards the causa causans in the case at
hand, two aspects need be borne in mind. The first is that
E
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
F
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
casualties. That is not, however, the same thing as saying
that it was the fire or the resultant smoke that was the
G
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. If such escape was to be delayed or prevented
the causa causans for death is not the smoke but the
factors that prevent or delay such escape. [para 123] [689H D-G]
SUSHIL ANSAL v. STATE THROUGH CBI
581
1.12. On the· facts proved in the instant case, the A
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 atmosphere. The
B
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 c
help to the victims when they needed the same most, all
attributable to the two brothers, namely, A-1 and A-2, the
occupiers of the cinema. [para 126] [691-D-G]
Raj Kapoor v. Laxman 1980 (2) SCR 512 = (1980) 2 SCC
175 - referred to.
D
1.13.ln order that A-1 and A-2, the occupiers of the
cinema, could claim the benefit of s.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 E
expression 'good faith' necessarily brings in the question
whether the persons concerned had acted with due care
and caution. If they had not, part (b) of s.79 would have
no application to the case. In the instant case, it cannot
be accepted that the appellant occupiers acted in good
F
faith so as to claim protection uls 79 of the IPC. [para 132,
133 and 136] [693-D-E; 697-D]
Russel on Crime; "Law of Crimes" (23rd Edn.) by
Ratanlal and Dhirajla/ Page 199 - referred to.
State of Orissa and Ors. v. Titaghur Paper Mills Co. Ltd.
and Anr. 1985 SCR 26 = (1985) Supp SCC 280; Union of
India v. Glaxo India Ltd. and Anr. 2011 (4) SCR 50 = (2011)
G
6 SCC 668; and lsherdas Sahni & Bros and Anr. v. The Delhi
Administration and Ors. AIR 1980 Delhi 147; Willie (William)
H
582
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A
Slaney v. State of Madhya Pradesh (AIR 1956 SC 116) •
referred to.
Green v. Fibreglass Ltd. 1958 (2) QBD 245, Gee v. The
Metropolitan Railway Company 1873 VIII Q.B. 161 and Grant
8
v. Sun Shipping Co. Ltd. and Anr. 1948 AC 549; Haze/dine
v. C.A. Daw and Son Ltd. and Ors. (1941) 2 KB 343 ·referred
to.
2.1. Section 464 of the Cr.P .C., in no uncertain terms
C 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
D facf been occasioned thereby. In the instant case, there
was nothing fundamentally wrong with the charges
framed against the accused-appellants nor have they
been able to demonstrate that they suffered any prejudice
on account of the alleged defects. Therefore, there is no
E reason to interfere with the concurrent judgments and
orders of the courts below in so far as the same have
convicted appellants A-1 and A-2 u/ss 304A, 337, 338 read
with s.36 IPC and s.14 of the Cinematograph Act, 1952.
[para 159,161 and 166] [710-C-E; 712-A-B; 714-C-D]
F
K. C. Mathew v. State of Travancore-Cochin
1955
SCR 1057 =AIR 1956 SC 241, Gurbachan Singh v. State of
Punjab AIR 1957 SC 823, Eirichh Bhuian v. State of Bihar
1963 Suppl. SCR 328 = AIR 1963 SC 1120, State of
Maharashtra v. Ramdas Shrinivas Nayak 1983 (1)
G SCR 8 =AIR 1982 SC 1249, Lal/an Rai v. State of Bihar 2002
(4) Suppl. SCR 188 = (2003) 1 sec 268 and State (NCT of
Delhi) v. Navjot Sandhu 2005 (2) Suppl. SCR 79 = (2005)
11 SCC 600; Jai Dev v. State of Punjab 1963 SCR 489 = AIR
1963 SC 612; Shivaji Sahabrao Bobade v. State of
H Maharashtra 1974 (1) SCR 489 = (1973) 2 SCC 793; State
SUSHIL ANSAL v. STATE THROUGH CBI
583
(Delhi Admn.) v. Dharampa/ 2001 (4) Suppl. SCR 448 = A
(2001) 10 SCC 372 and Bakhshish Singh v. State of Punjab
AIR 1967 SC 752 - referred to.
2.2. As regards the conviction of Divisional Fire
Officer, A-15, the trial court has on a reappraisal of the
8
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 temporary permits in favour C
of the theatre which directly resulted in the death of 59
persons in the incident in question. The said finding was
affirmed by the High Court. There is no compelling
reason for this Court to take a different view in the matter
especially when there is no miscarriage of justice or
perversity in the reasoning adopted by the trial court and
D
the High Court. [para 167, 168, and 172] [714-D-F; 715-D;
717-F]
2.3. The causa causans for the death of 59 persons
was their inability to quickly exit from the balcony area.
E
That being so, even when the repairs carried out by A11 and A-9, i.e. the Inspector and Fitter of DVB, may have
been found to be unsatisfactory for the reasons given by
the trial court and the High Court, the fire resulting from
such poor repair was no more than causa sine qua non
F
for the deaths and, therefore, did not constitute an
offence punishable u/s 304A, IPC. The conviction of
appellants A-11 and A-9 u/s 304A cannot, therefore, be
sustained. That would, however, not affect their
conviction u/ss. 337 and 338 read with s.36 of the IPC
G
which would remain unaffected and, as such affirmed.
The High Court has rightly acquitted A-6 of the charges
u/s 304 (Part II) read with s.36 IPC for reasons that
prosecution glaringly has not proved when these two
accused fled the cinema hall; there is no eyewitness
H
584
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A 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 injuries. Thus, proof of these appellants, having
committed the offence u/s 304, is not forthcoming. While
B acquitting of A-13 and A-14, Administrative Officers, MCD,
the High Court has taken a fairly reasonable view which
is in tune with the evidence on record. There is no room
for interference even with this part of the order passed
by the High Court. [para 178, 179,181 and 183-185] [721C C-E, F; 722-F-G; 724-D; 726-C]
2.4. What emerges from the decided cases is that: (a)
Each case must be decided on its own facts to determine
whether the knowledge that death was likely to be
caused did in fact precede the rash/negligent act. (b) What
D converts a case apparently falling u/s 304A into one u/s
304 (Part II) is the knowledge that the act is likely to cause
death" and (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
E may be attributed the knowledge that such act was likely
to cause death of others using the road. [para 195] [732H; 733-A-C]
Alister Anthony Pereira v. State of Maharashtra 2012
F (1) SCR 145 = (2012) 2 SCC 648; Keshub Mahindra v. State
of M. P. 1996 (6) Suppl. SCR 285 = (1996) 6 SCC 129; State
through PS Lodhi Colony, New Delhi v. Sanjeev Nanda 2012
(12) SCR 881 = (2012) 8 SCC 450; C.B.I. and Ors. etc. v.
Keshub Mahindra etc. 2011 (6) SCR 384 = (2011) 6 SCC
G 216; Shamnsaheb M. Multtani v. State of Kamataka 2001 (1)
SCR 514 = (2001) 2 SCC 577; Sushi/ Ansal v. State Through
CBI etc. etc. 1995 (2002) DLT 623 - referred to.
H
Town Investments Ltd. v. Department of the Environment
1977 (1) All E.R. 813 - referred to.
SUSHIL ANSAL v. STATE THROUGH CBI
585
3.1. The scope of interference by this Court with the
A
quantum of punishment awarded by the High Court is
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. Award of sentence of one year rigorous
B
imprisonment for an offence where maximum sentence
prescribed extends to two years cannot, therefore, be
said to be inadequate to call for interference by this Court
under Art. 136 of the Constitution. Besides, right to
speedy trial has been held to be implicit in Art. 21 of the
C
Constitution. Such being the case delay has been often
made a basis for the award of a reduced sentence.
[para 207, 212 and 214) (740-H; 741-A-B; 745-A, B, F]
Sham Sunder v. Pu ran and Anr. 1990 (1) Suppl.
0
SCR 662 = (1990) 4 SCC 731, Deo Narain Manda/ v. State
of Uttar Pradesh (2004) 7 SCC 257, State of U.P. v. Shri
Kishan 2004 (6) Suppl. SCR 530 = (2005) 10 SCC 420 State
of Madhya Pradesh v. Ghanshyam Singh 2003 (3)
Suppl. SCR 618 = (2003) 8 SCC 13 State of M.P. v.
E
Sangram and Ors. AIR 2006 SC 48 - referred to.
Hussainara Khatoon and Ors. v. Home Secretary, State
of Bihar, Patna 1979 (3) SCR 169 = (1980) 1 SCC 81;
Balaram Swain v. State of Orissa 1991 Supp (1) SCC 510;
and M.O. Shamsudhin v. State of Kera/a 1995 (2) SCR 900 = F
(1995) 3 SCC 351; A. R. Antu lay v. R. S. Na yak 1991
(3) Suppl. SCR 325 = (1992) 1 SCC 225; Kantilal Chandu/a/
Mehta v. State of Maharashtra and Anr. 1970 (2) SCR 742 =
(1969) 3 sec 166 - relied on.
3.2. Further, appellants A-1 and A-2 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. Thus, it cannot be said that the
G
H
586
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A punishment awarded to the A-1 and A-2 ought to be
-enhanced. [para 215-216] [746-8-C; 747-8]
B
Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. 2007 (4)
SCR 1122 = (2007) 6 sec 528 - relied on.
Municipal Council of Delhi, Delhi v. Asso~iation of
Victims for Uphaar Tragedy and Ors. 2011 (16) SCR 1 =
(2011) 14 SCC 481; Ankush Shivaji Gaikwad v. State of
Maharashtra (2013) 6 SCC 770 - referred to.
C
4.1. 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
administratio.n. Callous indifference and apathy,
D extraneous influence or considerations 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. Flawed
investigations and a long winding criminal trial brings the
E case to an uncertain end. [para 1] [593-E-H]
4.2. Adheren_ce 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.
F Directions to the authorities to take corrective steps, 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. [para 218] [748-D, G-H]
G
5. In the result: (i) the conviction and sentences
awarded to A-1 and A-2 are upheld; (ii) the conviction and
sentence of A-15 is also upheld; and (iii) the conviction
of A-9 and A-11 is altered to ss. 337 and 338 read with s.36
IPC without interference with the sentence awarded to
H them. [para 221] [750-H; 751-A, C-D]
SUSHIL ANS.AL v. STATE Tl-IROUGH CBI
587
Per Gyaff ·Sudha ·Misra, J. (Concurring, but partly A
dissenting as reards quantum of sentence):
1.1. The conviction of the accused appellants u/ss
304A, 337, 338 read with s.36 IPC and s.14 of the
Cinematograph Act, 1952 is approved. However, when it
comes to determination and imposition of sentence, it 8
cannot be ignored that the incident happened due to their
gross criminal negligence. The trial court had sentenced
appellants A-1 and A-2 to undergo imprisonment for two
years. However, the High Court although upheld the
conviction of the appellants reduced the sentence to one C
year, for which no specific reason much less cog~nt and
convincing has been assigned.· The fundamen.tal
obligation and duty to care at all times rested with the
occupiers of the cinema house and the licensee thereof.
[para 1, 3, 5 and 15] [751-G-H; 752-A, E; 753-D-E; 760-C]
D
Deo Narain Manda/ v. State of Uttar Pradesh (2004) 7
SCC 257; State of U.P. v.
Shri Kishan 2004 (6)
Suppl. SCR 530 = (2005) 10 SCC 420 State of Madhya
Pradesh v. Ghanshyam Singh 2003 (3) Suppl. SCR 618 =
(2003) 8 SCC 13 State of M.P. v. Sangram and Ors. AIR 2006
E
SC 48; Sham Sunder v. Puran and Anr. 1990 (1) Suppl.
SCR 662 = (1990) 4 SCC 731 - relied on.
Culpability of the Supervisor or Inspector
1.2. In the instant case, A-9 and A-11 i.e. the Inspector F
and the fitter of DVB were in charge of the maintenance
of the transformer which is a hazardous object. 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 G
inspect the building for the fire hazards and ensure that
it was a safe place for the public. He issued NOC from the
fire safety, though no fire safety and means of e"'~ape
was available as per the standard laid down, in the Jphaar
Cinema. On the basis of this NOC, Temporary License was H
588
SUPREME COURT REPORTS
[2014) 9 S.C.R.
A issued by the Licensing Authority. [para 30 and 37] [768·
F-H; 772-A]
1.3. As a consequence of the findings based on the:
analysis of the evidence recorded, sentence of two years
awarded by the trial court was not fit to be interfered with
B by the High Court. In an offence of this nature which can
be put somewhat 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
C be punitive, deterrent and exemplary in nature. [para 3839] [772-B, H; 773-A]
State of Maharashtra vs. Chandra Prakash Neshavdev
1991 Cr.L.J. 3187 - referred to.
D
1.4. Therefore, while the sentence of one year
imposed -by the High Court is upheld, the additional
sentence of one year is fit to be substituted by a
substantial sum of fine to be shared equally by appellants
A-1 and A-2 alongwith the DVB which also cannot
E absolve itself from compensating the victims of the
tragedy. [para 40] [773-G-H]
1.5. In lieu of the enhanced sentence of a period of
one year, the same be substituted with a fine of Rs.100
crores (One Hundred Crores) to be shared and paid by
F A-1 and A-2 in equal measure i.e. 50 crores each, 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. For this
purpose, the State of Delhi as DVB which is/was an
G instrumentality of the State shall allot at least five acres
of land or more. [para 44] [776-D-F]
Case Law Reference:
Per Thakur, J.
H
1977 (1) SCR 280
relied on
para 44
SUSHIL ANSAL v. STATE THROUGH CBI
589
2006 (1) SCR 519
relied on
para 45
A
2009 (14) SCR 755
relied on
para 45
2010 (11) SCR 968
relied .on
para 45
(2011) 12 sec 554
relied on
para 45
8
2011 (10) SCR56
relied on
para 45
(1881) 3 All.776
referred to
para 48
7 Mad HCR 119
referred to
para 48
2005 (2) Suppl. SCR 307 referred to
para 55
c
248 NY 339para 56
referred to
para 5!)
(1947) KB 901
referred to
para 57
278 Mass 31 (1932)
referred to
para 58
D
380 Mass 350 (1980)
referred to
para 59
et. Al.741 P.2d 1090
referred to
para 60
(Wyo. 1987)
(1947) S.C.R. 486
referred to
para 61
E
(2001) 1 ILR Punjab &
referred to
para 63
Haryana 368
(1966) 1 All ER 582
referred to·
para 64
(1953) 2 All ER 1185
referred to
para 64
F
(1971) 2 All ER 835
referred to
para 64
• [1999] CrimLR 582
referred to
para 65
(1925) 94 L.J.K.B. 791
referred to
para 68
G
AIR 1943 PC 72
referred to
para 69
(1994) 3 All ER 79
referred to
para 72
(1902) 4 Born LR 679
referred to
para 75
H
590
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A
1965 SCR 622
relied on
para 76
1968 SCR 515
relied on
para 77
1969 ACJ 70
relied on
para 78
B
AIR 1968 SC 1319
relied on
para 78
(1970) 3 sec 904
relied on
para 78
(1972) 3 sec 18
relied on
para 78
2005 (3) Suppl. SCR 371
held
para 91
c
inapplicable
(1996) 6 sec 685
held
para 91
inapplicable
(1917) 2 KB 325
referred to
para 93
D
(1934) AC 1
referred to
para 99
1968 Mah. L.J. 423 (SC)
referred to
Para 103
1968 (3) SCR 766
referred to
para 104
E
/LR XVI All. 472
referred to
para 105
1905 PR 22(Cr)
referred to
para 105
169 English Reports
referred to
para 105
F
(C.C.) 1517
(1902) 19 TLR 37
referred to .
para 105
2011 (16) SCR 1
referred to
para 109
[1947) AC 156
referred to
para 113
G
(1943) AC 448
referred to
para 113
2012 (12) SCR 881
referred to
para 119
1980 (2) SCR 512
referred to
para 127
H
1985 SCR 26
referred to
para 145
SUSHIL ANSAL v. STATE THROUGH CBI
591
2011 (4) SCR 50
referred to
para 145
A
AIR 1980 Delhi 147
referred to
para 148
1958 (2) QBD 245
referred to
para 149
1873 VIII Q.B. 161
referred to
para 149
B
1948 AC 549.
referred to
para 149
(1941) 2 KB 343
referred to
para 150
AIR 1956 SC 116
referred to
para 159
1955 SCR 1057
referred to
para 160
c
AIR 1957 SC 823
referred to
para 160
1963 Suppl. SCR 328
referred to
para 160
1983 (1) SCR 8
referred to
para 160
D
2002 (4) Suppl. SCR 188 referred to
para 160
2005 (2) Suppl. SCR79
referred to
para 160
1963 SCR 489
referred to
para 163
E
1974 (1) SCR 489
referred to
para 164
2001 (4) Suppl. SCR 448 referred to
para 165
AIR 1967 SC 752
referred to
para 165
F
1995 (2002) DLT 623
referred to
para 186
2012 (1) SCR 145
referred to
para 190
•
1996 (6) Suppl. SCR 285 referred to
para 190
2012 (12) SCR 881
referred to
para 194
G
2011 (6) SCR 384
referred to
para 198
2001 (1) SCR 514
referred to
para 200
1977 (1) All E.R. 813
referred to
para 200
H
592
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A
1979 (3) SCR 169
relied on
para 201
1991 (3) Suppl. SCR 325
relied on
para 201
1970 (2) SCR 742
relied on
para 205
B
1990 (1) Suppl. SCR 662 referred to
para 208
(2004) 1 sec 257
referred to
para 209
2004 (6) Suppl. SCR 530
referred to
para 210
2003 (3) Suppl. SCR 618
referred to
para 210
c
AIR 2006 SC 48
referred to
para 211
1991 Supp (1) sec 510
referred to
para 214
1995 (2) SCR 900
relied on
para 214
D
(2013) 6 sec 110
referred to
para 215
2007 (4) SCR 1122
relied on
para 215
Per Gyan Sudha Misra, J
E
1990 (1) Suppl. SCR 662
relied on
para 17
(2004) 1 sec 257
relied on
para 18
2004 (6) Suppl. SCR 530
relied on
Para 18
F
2003 (3) Suppl. SCR 618
relied on
Para 18
AIR 2006 SC 48
relied on
Para 18
1991 Cr.L.J. 3187
relied on
para 39
CRIMINAL APPELLATE JURISDICTION; Criminal Appeal
G No. 597 of 2010.
From the Judgment & Order dated 19.12.2008 of the High
Court of Delhi at New Delhi in Criminal Appeal No. 794 of 2007.
H
SUSHIL ANSAL v. STATE THROUGH CBI
593
WITH
Crl.A.Nos. 598., 599", 600-602, 604, 605-616 and 617-627 of
2010.
A
Ram Jethmalani, Sushil Kumar, Ramesh Gupta, Kailash
Vasdev, Manu Sharma, Sanjay Jain, Lata Krishnamurti, P.R.
B
Mala, Pranav Diesh, Karan Kalia, Anand Varma, Afshan
Pracha, Abhir Oatis, Saurabh Taneja, Ali Jethmlani, Ruchika
Bhan, Ashish Dixit, Sanjay Narayan, Aditya Kumar, Vinay
Arora, B. Krishna Prasad, Varinder Kumar Sharma, Shahzid
Khan, Jayant Kumar Mehta, Aseem Mehrotra Shailendra S.
C
Dahiya, Abhijat P. Medh, Jagjit Singh Chhabra, Ravindra
Singh, Maheen Pradhan, Jayant Mehta, G. Vardhan, Jayant
Kumar Mehta, Sudarshan Singh Rawat, Vinay Arora, S. Janani
Sunando Raha, Deepak Goel, Sandeep Singh, Gopal Singh,
Manish Kumar, Chandan Kumar, Sanat Tokas, Ashok K.
D
Mahajan, Aparjita, T.A. Khan, Arvind Kumar Sharma, RV.
Balramdas, Shrish Kumar Misra for the appearing parties.
The Judgments & Order of the Court were delivered by
T.S. THAKUR, J. 1. Enforcement of laws is as important
E
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
considerations and the cynical "Cha/ta Hai" attitude more often
F
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
G
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
H
594
SUPREME COURT REPORTS
[2014] 9 S.C.R.
A
dated 19th 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
s
Association of Victims of Uphaar Tragedy (hereinafter, "AVUT")
that led to the death of 59 persons besides injuries to nearly
100 others.
2. The High Court has, on a reappraisal of the evidence
C
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
D
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
E
Extension area on 13th 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
F
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 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:
G
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
H
SUSHIL ANSAL v. STATE THROUGH CBI
595
[T.S. THAKUR, J.]
capacity of 750 seats besides a balcony with a sanctioned
A
capacity of 250 seats. The cinema auditorium comprised the
first floor of the cinema complex while the balcony was
constructed on the second floor.