SUSHIL ANSALversusSTATE THROUGH CBI

                        [2015] 9 S.C.R. 552


A                         SUSHIL ANSAL
                                 v.
                      STATE THROUGH CBI
                 (CriminalAppeal No.597 of2010)
B
                      SEPTEMBER 22, 2015
             [ANIL R.DAVE, KURIAN JOSEPH AND
                  ADARSH KUMAR GOEL, JJ.)

C        Sentence/Sentencing - Conviction of the appel/ants-
    accused u/ss.304-A/3371338 rlw. s.36 /PC and uls.14 of
    Cinematograph Act, 1952 -Accused sentenced to one year
    imprisonment- Division Bench of Supreme Court confirmed
    their conviction - But there was difference of opinion on the
D   question of sentence - Matter referred to larger Bench to
    determi~e the question of sentence - Held: Maximum
    sentence for such offence is imprisonment of two years - In
    the facts and circumstances of the case, the sentence needs
E   to be enhanced to its maximum - But the ends of justice
    would be met if in lieu of the enhanced period of sentence of
    one year; substantial amount of fine is imposed, which can
    be used for setting up/upgrading a Trauma Centre in Delhi -
    Hence, accused Nos. 1 and 2 are directed to pay a fine of
F   Rs. 30 crores each, within a period of 3 months from the date
    of judgment - If the fine is paid, their sentence would be
    reduced to the period already undergone - On default to pay
    fine, have to undergo 2 years RI - In the peculiar facts and
    circumstances of the case, sentence of accused No. 15 is
G   reduced to the period already undergone on payment of fine
    of Rs. 10 /akhs- On default, to undergo sentence of one year
    - Penal Code, 1860 - ss.304-A, 337, 338 rlw. s.36 -
    Cinematograph Act, 1952 - s. 14.

H                              552
        SUSHIL ANSAL v. STATE THROUGH CBI                   553


    Disposing of the appeals, the Court.                     A

    HELD: 1. An appropriate sentence has to be awarded
by taking into consideration the gravity of offence, the
manner of commission, the age of the accused and other
mitigating and a.ggravating circumstances. The sentence      B
should neither be excessively harsh nor ridiculously low.
[Para 16] [562-D]

     2. Matter of such magnitude as in the present case,
may call for a higher sentence, but the Court has to limit C
itself to the choice availaule under the law prescribing
sentence. The maximum $entence prescribed under the
law is p~riod of two years and the High Court had chosen,
in the facts and circumstances of the case, to award
sentence of one year. [Para 17] [562-E-F]                  o
     3. The. sentence awarded by the High Court needs
to be enhanced to the maximum period of two years
under Section 304-A but in lieu of additional period of
sentence of one year, the substantial amount of fine E
needs to be imposed. In case the said amount of fine is
paid, the sentence should be reduced to the period
already undergone in the case of A 1. On the principle of
parity, the case of A2 will stand on the same footing as
that of A1. Thus, ends of justice would meet, if the F
appellants are directed to pay fine so that the amount of
fine can be used either for the purpose of setting up a
Trauma Centre in NCT of Delhi or for upgrading Trauma
Centres of Hospitals managed in NCT of Delhi by the
Government of Delhi. [Para 18] [563-A-D]                  G

    4. Therefore, it is directed that a fine of Rs.30 crore
on each appellant should be imposed and if the said fine
is paid within a period of three months, the sentence of
the appellants be reduced to the sentence already H
554        SUPREME COURT REPORTS               [2015] 9 S.C.R.


A     undergone. If the aforestated amount is not paid within
      three months from the date of order dated 191h August,
      2015, the appellants shall undergo two years' rigorous
      imprisonment, including the sentence already
      undergone. [Para 19] [563-E-F]
B
      5. As regards the conviction of Appellant whose
  conviction u/s. 304-A/337/338 r/w s. 36 IPC was
  confirmed, on the ground of parity, shall stand
  sentenced to undergo rigorous imprisonment for one
C year. However, having regard to advanced age and
  diseases like alzheimer's disease suffered by the
  accused and other peculiar facts and circumstances, if
  he pays Rs.10 lakh by way of fine, the sentence ~ill stand
  reduced to the period already undergone. If he fails to
D pay the aforestated amount within three months from
  the order dated 19'h August, 2015, he shall undergo the
  sentence of one year, including the term which he has
  already undergone. [Paras 20 and 21] [563-H; 564-A-C]

E         6. The fine imposed upon A-1, A-2 and A-15 shall be
      given by way of a demand draft to the Chief Secretary of
      Delhi Government for setting up a new trauma centre or
      for upgrading the existing trauma centres of hospitals
      managed by the Government of NCT of Delhi. [Para 22]
F     [564-E-F]
         CRIMINAL APPELLATE JURISDICTION: Criminal
      Appeal No. 597 of 2010.
      From the Judgment and Order dated 19.12.2008 of the
G High Court of Delhi at New Delhi in Criminal Appeal No. 794
  of2007.
                            Will-I
      Criminal Appeal Nos. 598/2010, 599/2010, 600-602/
H 2010, 605/2010, 606/2010 & 613/2010.
         SUSHIL ANSAL v. STATE THROUGH CBI                       555


    Ram Jethmalani, Gopal Jain, Salman Khurshid, Vikas            A
Agarwal, Madhukar, Vinay Arora, Sudarshan Singh Rawat,
Sanjay Jain, Lata Krishnamurthy, Anirudh Anand, Somnath
Gaur, Ajay Awasthi, Chirag Madan, P.R. Mala, Moh it D. Ram,
Monisha Handa, Sanjay Narayan, ShabeenaAnjuna, Aseem
Mehrotra, Abhijat P. Medh for the Appellant.                      B

   K.T.S. Tulsi, Harish N. Salve, Jayant K. Mehta, A. Faraz
Khan, Ambika Mehta, Priyanka Aggarwal, Mandarini Singh,
Aparajita, T.A. Khan (For B. Krishna Prasad) for the
Respondent.                                                 C

    The Judgment of the Court was delivered by

    ANIL R. DAVE, J.

    CRIMINAL APPEAL NOS.597 AND 598 OF 2010                       D

    1. The aforestated appeals had been initially heard by two
Hon'ble Judges of this Court. Though the order of conviction
had been upheld by the learned Judges, on the subject of
sentence the learned Judges differed. Justice T.S. Thakur         E
passed the following order on the sentence:

    "(i) Criminal Appeal Nos.597 of 2010 and 598 of 2010
    filed by Sushil Ansal (A-1) and Gopal Ansal (A-2)
    respectively are hereby dismissed upholding the               F
    conviction and sentences awarded to them."

    Whereas Justice Gyan Sudha Mishra passed the following
order:

    "44. Therefore, for the reasons recorded herein before, I G
    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 H
    byA-1 Su sh ii Ansal and A-2 Gopal Ansal in equal measure
556     SUPREME COURT REPORTS                     [2015] 9 S.C.R.


A      i.e. Rs 50 crores each and Rs 100 crores in all, and shall
      be paid by way of a demand draft issued in the name of
      the Secretary General of the Supreme Court of India which
      shall be kept in a fixed deposit in any nationalised bank
      and shall be spent on the construction of a trauma centre
B     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
c     Delhi, as DVB which is/was an instrumentality of the State,
      shall allot at least five acres of land or more at any suitable
      location at Dwarka within a period of four months of this
      judgment and order on which a trauma centre for accident
      victims along with a Super speciality department/ward for
D
      burn injuries shall be constructed to be known as the
      "Victims of Uphaar Memorial Trauma Centre" or any other
      name that may be suggested by AVUT/Uphaar Victims'
      Association. This trauma centre shall be treated as an
E     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
F     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 GopalAnsal under the supeNision of the Building
      Committee to be constituted which shall include Secretary
G     General of the Supreme Court, Registrar Administration
      of the Supreme Court along with a representative of AVUT
      nominated by the Association and the Hospital
      Superintendent, Safdarjung Hospital, New Delhi within a
      period of two years from the date of allotment of the plot
H     of land by the State of Delhi which shall be run and
         SUSHIL ANSAL v. STATE THROUGH CBI                         557
                  [ANIL R. DAVE, J.]

    administered by the authorities of the Safdarjung Hospital A
    Administration as its extension centre for accident
    victims."

     2. In view of the difference of opinion between the two
learned judges regarding quantum of sentence, the matter has        B
been placed before us in pursuance of the following order
dated 5.03.2014 :-

    "4. Criminal Appeals No. 597, 598 and 599 of 2010 filed
    by the appellants in those appeals and Criminal Appeals c
    No. 605, 606 and 613 of 2010 filed by the State and
    Criminal Appeals No. 600-602 of 2010 filed by the
    Association of Victims of Uphaar Tragedy to the extent
    the said appeals involve the question of quantum of
    sentence to be awarded to the convicted appellants in D
    the appeals mentioned above shall stand referred to a
    three-Judge Bench".

     3. We have heard the learned counsel appearing for the
parties and have also carefully gone through that portion of the    E
judgment, whereby the sentence has been imposed upon the
Appellants.

     4. Upon hearing the learned counsel and on perusal of
the record pertaining to the case, we find that the root cause
of the fire was 1000 KVA transformer installed and maintained F
by the Delhi Vidyut Board (DVB), which was in the premises
of Uphaar Cinema. The said 1000 KVA transformer, even
though located within the Uphaar cinema premises, did not
belong to the appellants.                                      G

      5. The said transformer caught fire on 13.6.1997 around
6.55 a.m. damaging the ar~ surrounding the transformer. The
fire was brought under control by 7.25 a.m. and it was repaired
by two employees of the DVB along with Senior Fitter, Bir           H
Singh, who were possibly not highly qualified in the field of
558         SUPREME COURT REPORTS                  (2015] 9 S.C.R.


A     Electrical Engineering. The repairs were carried out without
      use of any special equipment. The said transformer was
      recharged for resumption of electric supply by 11.30 a.m. on
      the same day.

B       6. As the factual matrix would further unfurl, on the fateful
  day, around 3:00pm, the matinee show of film 'Border' started.
  Between 3:55 and 4:55 p.m., there was a general power shut
  down; however the Cinema show continued. Immediately, on
  resumption of electricity at 4:55 pm, there was intense and
C heavy sparking in the DVB transformer, which led to B phase
  cable detaching, sliding down of the B phase cable, forming
  an arc and ultimately resulting in rupture of the Transformer fin.
  Through this slit, the transformer oil spilled out, caught fire and
  consequently set ablaze several vehicles parked nearby in the
D stilt floor. This fire generated hot thick black smoke, which
  travelled upwards, accelerated by a Chimney effect.

        7. The smoke entered the hall from the staircases, air
  conditioning ducts as well as the area beneath the screen and
E the audience sitting in the ground floor of the auditorium
  escaped immediately. The audience sitting in the balcony
  found it hard to escape as there were no lights due to lack of
  power supply, nor were there any emergency lights or lights to
  give indication about the exit. Moreover, there were no
F warnings through public address system for immediate
  evacuation in an orderly manner. The closure of the right side
  exit, elimination of one exit and the narrowing of another exit
  as well as introduction of certain seats near the left side exit,
  together with bolting of certain doors in the balcony caused
G panic and resulted in delayed escape of most of the spectators
  occupying balcony seats. Most of the spectators were
  subsequently rescued by the fire fighters, but they were
  severely affected by the smoke. The fire was soon declared a
H major one and rescue operations continued till about 7:30pm.
            SUSHIL ANSAL v. STATE THROUGH CBI                      559
                     [ANIL R. DAVE, J.]

  The entire mishap claimed lives of 59 persons besides injuries A
  to nearly 100 others.

         8. It is pertinent to note here that initially there were two
 , exits in the balcony portion of the cinema theatre. One portion
   was open as an exit, whereas another had been closed down B
   on account of certain additional seats placed near the exit.
   The additional seats were arranged with permission of all
   authorities concerned and even the second exit had also been
   closed with permission of all authorities concerned. The
   representatives of the departments concerned like Home C
   Department, Police Department, Fire Department, etc. had
   visited the theatre before giving necessary permission for
   increase in the number of seats, approval of the changed layout
   of seats and for closure of the second exit.
                                                                    D
      9. Under these circumstances, when another exit had been
  closed on account of arrangement of additional seats, which
  had been done with proper permission of the concerned
  authorities, the spectators of the balcony had to rush only
• towards one exit which was leading to the staircase, already      E
  occupied with toxic gases including carbon monoxide.

       10. Due to inhalation 'of toxic gases including carbon
  monoxide, most of.the spectators, who had occupied balcony
  seats, collapsed in the balcony or on the staircase and           F
  ultimately the unfortunate mishap, which is the subject matter
  of this case, took place.

       11. In view of the aforestated undisputed facts, the issue
  with regard to imposition of sentence upon the appellants is to · G
  be decided by us. We are concerned with imposition of
  sentence in a criminal case and not with awarding damages
  in a civil case. Principles for deciding both are different.

      12. In the instant case, we are only concerned with           H
  imposition of appropriate sentence for the reason that the
560         SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A     appellants have already been convicted of the offences under
      Sections 304-A/337/338 read with Section 36 of the Indian
      Penal Code (IPC) and Section 14 of the CinematographAct,
      1952 and the conviction has been affirmed by this Court.

B      13. One can say that if the second exit leading to another
  staircase had not been closed, possibly the damage and
  deaths could have been less. The reason for which the second
  exit was· closed was arrangement of additional seats and
  change of layout of seats in the balcony. The appellants, the
C owners of the cinema premises, were aware of the fact that
  one exit had been closed due to addition of seats and change
  in the layout of the seats and the said fact could have exposed
  the spectators to the risk they actually faced, which ultimately
  resulted into the abovesaid mishap. Be that as it may, the fact
D remains that the appellants have been found guilty and they
  have been convicted.

            14. On the issue of sentence, one of our brother Judges,
      T.S. Thakur, J. has upheld rigorous imprisonment of one year
E     which has been imposed by the High Court. So far as Gyan
      Sudha Misra, J. is concerned, she was of the view that the
      sentence imposed was insufficient and therefore, it should be
      enhanced and possibly because the heirs _of the victims were
      not interested in getting compensation, she was of the view
F     that appropriate fine should be imposed upon the appellants,
      which should be used for a public purpose so that in future, in
      the event of any such mishap, the injured persons can be given
      prompt and effective treatment. The learned Judge had,
      therefore, perhaps rightly thought about imposing rigorous
G     imprisonment of one additional year and looking at the fact
      that the victims had already lost their lives and the amount of
      fine which could be recovered from the appellants can be used
      for a better public purpose, the learned Judge imposed fine of
H     Rs.50 crore on each of the appellants in lieu of the additional
      sentence which had been proposed by observing:-
         SUSHIL ANSAL v. STATE THROUGH CBI                          561
                  [ANIL R. DAVE, J.]

    "40. Hence, I am of the view that interest of justice to some    A
    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      B
    by a substantial sum of fine to be shared equally by the
    Appellants SushilAnsal and GopalAnsal along with DVB
    which also can not absolve itself from compensating the
    victims of Uphaar tragedy represented by theAVUT".
                                                                     c
    "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 D
    these appeals imposed on the Appellants Sushi I 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 of2010 preferred by E
    the CBI which shall be shared bytheAppellant SushilAnsal
    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 F
    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".                                          G

    15. Shri Ram Jethmalani, learned senior counsel,
submitted that in the facts and circumstances of the present
case, the amount of fine of Rs.100 crore may be reduced and
the view expressed by Misra, J. to reduce the sentence of H
562         SUPREME COURT REPORTS                 [2015] 9 S.C.R.


A appellant- Sushi I Ansal (A-1) to the period already undergone
  considering his advanced age, be also made applicable to
  GopalAnsal (A-2) on the principle of parity. He submitted that
  both the appellants had already undergone substantial part of
  the sentence out of sentence of one year awarded to them
B and were willing to pay substantial amount towards fine in lieu
  of the undergoing remaining period of sentence. He also
  pointed out that out of one year sentence, they had already
  undergone substantive sentence of 5-6 months and with
  remissions, sentence undergone worked out to about nine
C months.

           16. We have duly considered the matter. It hardly needs
      to be mentioned that an appropriate sentence has to be
      awarded by taking into consideration the gravity of offence,
D     the manner of commission, the age of the accused and other
      mitigating and aggravating circumstances. The sentence
      should neither be excessively harsh nor ridiculously low.

       17. We are conscious of the fact that matter of this
E magnitude may call for a higher sentence, but the Court has to
  limit itself to the choice available under the law prescribing
  sentence. The fact that remains is that the maximum sentence
  prescribed under the law is period of two years and the High
  Court had chosen, in the facts and circumstances of the case,
F to award sentence of one year which has been approved by
  Thakur, J. In the dissenting opinion by Misra, J. the modification
  is that the sentence be enhanced but giving an option to pay
  substantial amount in lieu of the enhanced sentence with further
  direction to reduce the jail sentence to the period already
G undergone, if the amount of fine in lieu of enhanced sentence
  is paid.

       18. After having considered the facts of the case, the views
   expressed by both the learned Judges and the arguments
H ·advanced by the learned counsel appearing for both sides,
          SUSHIL ANSAL v. STATE THROUGH CBI                        563
                   [ANIL R. DAVE, J.]

we are in agreement with the view expressed by Misra, J. that A
sentence awarded by the High Court needs to be enhanced
to the maximum period of two years under Section 304-A but
in lieu of additional period of sentence of one year, the
substantial amount of fine needs to be imposed. We are further·
of the view that in case the said amount of fine is paid, the B
sentence should be reduced to the period already undergone,
as indicated by Misra, J. in the case of SushilAnsal (A 1). On
the principle of parity, the case of Gopal Ansal (A2) will stand
on the same footing as that of SushilAnsal (A1). Thus, we are
of the considered opinion that ends of justice would meet if C
the appellants are directed to pay fine so that the amount of
fine can be used either for the purpose of setting up a Trauma
Centre in NCT of Delhi or for upgrading Trauma Centres of
Hospitals managed in NCT of Delhi by the Government of D
Delhi.

     19. We, therefore, directthat a fine of Rs.30 crore on each
appellant should be imposed and ifthe said fine is paid within
a period of three months, the sentence of the appellants be
reduced to the sentence already undergone. We have noted E
the fact that as appellant no.1 is fairly aged, it may not be fruitful
to ask him to undergo rigorous imprisonment. On the ground
of parity and on the peculiar facts of this case, so far as
appellant no.2 may also not be constrained to undergo the F
sentence, if he also pays the same amount of fine. If the
aforestated amount is not paid within three months from the
date of order dated 191h August, 2015, the appellants shall
undergo two years' rigorous imprisonment, including the
sentence already undergone.                                            G

    CRIMINAL APPEAL NO. 599/2010:-

    20. As regards the conviction of Appellant H.S. Panwar
(A-15) assailed in Criminal Appeal No. 599/2010, the Ld.
Judges dismissed the afore-said appeal and affirmed the H
564         SUPREME COURT REPORTS                    [2015] 9 S.C.R.


A     conviction u/s. 304-A/337/338 read with S. 36 IPC. On the
      question of quantum of sentence quaAppellai1t H.S. Panwar
      (A-15), the matter was placed before us as stated above.

            21. In view of the facts discussed above and on the ground
B     of parity, we direct thatAppellant Harsarup Panwar (A-15) shall
      stand sentenced to undergo rigorous imprisonment for one
      year. However, having regard to advanced age and diseases
      like alzheimer's disease suffered by the accused and other
      peculiar facts and circumstances, if he pays Rs.10 lakh by way
C     of fine, the sentence will stand reduced to the period already
      undergone. If he fails to pay the aforestated amount within three
      months from the order dated 191h August, 2015, he shall
      undergo the sentence of one year, including the term which he
      has already undergone. Now, we h.ave been informed that
D     Appellant Harsarup Panwar (A-15) has already paid Rs.10
      lakh as per operative order pronounced on 19th August, 2015.

           22. The aforestated fine imposed upon the appellants in
      Criminal Appeals No. 597, 598 and 599 of 2010 filed by Sushil
E     Ansal (A-1), GopalAnsal (A-2) and Harsarup Panwar (A-15)
      shall be given by way of a demand draft to the Chief Secretary
      of Delhi Government for setting up a new trauma centre or for
      upgrading the existing trauma centres of hospitals managed
      by the Government of NCT of Delhi.
F
          CRIMINAL APPEAL NOs.600-602, 605, 606 and 613
      of 2010

      23. Consequently, Criminal Appeal No. 605, 606 and 613
G of2010filed by the State and Criminal Appeal No. 600-602 of
  2010 filed by the Association of Victims of Uphaar Tragedy
  are disposed of.

      24. In view of the above order, the impugned judgment
H stands modified so far as the question of imposition of
  sentence is concerned and the appeals are disposed of as
          SUSHIL ANSAL v. STATE THROUGH CBI                       565
                   (ANIL R. DAVE, J.]

partly allowed.                                                    A

    25. We had passed the operative part of the order on 191h
August, 2015, but since the Court time was almost over, we
have now given the reasons for the said order.
Kalpana K. Tripathy                         Appeals disposed of    B