IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.597 OF 2010SUSHIL ANSAL .....APPELLANT VERSUSSTATE THROUGH CBI .....RESPONDENT WITH CRIMINAL APPEAL NO.598 OF 2010GOPAL ANSAL .....APPELLANT VERSUSSTATE THROUGH CBI .....RESPONDENT WITH CRIMINAL APPEAL NO.599 OF 2010HARSARUP PANWAR .....APPELLANT VERSUSSTATE THROUGH CBI .....RESPONDENT WITH CRIMINAL APPEAL NOs.600-602 OF 2010, 605 OF 2010, 606 OF 2010 AND 613 OF 2010 J U D G M E N TANIL R. DAVE, J.CRIMINAL APPEAL NOS.597 AND 598 OF 20101. The aforestated appeals had been initially heard by two Hon’bleJudges of this Court. Though the order of conviction had been upheld bythe learned Judges, on the subject of sentence the learned Judges differed. Justice T.S. Thakur passed the following order on the sentence:“(i) Criminal Appeal Nos.597 of 2010 and 598 of 2010 filed by Sushil Ansal(A-1) and Gopal Ansal (A-2) respectively are hereby dismissed upholding theconviction and sentences awarded to them.”Whereas Justice Gyan Sudha Mishra passed the following order:“44. Therefore, for the reasons recorded hereinbefore, I am of the viewthat in lieu of the enhanced sentence of a period of one year which I allowin the appeals preferred by AVUT and CBI, the same be substituted with afine of Rs 100 crores (one hundred crores) to be shared and paid by A-1Sushil Ansal and A-2 Gopal Ansal in equal measure i.e. Rs 50 crores eachand Rs 100 crores in all, and shall be paid by way of a demand draft issuedin the name of the Secretary General of the Supreme Court of India whichshall be kept in a fixed deposit in any nationalised bank and shall bespent on the construction of a trauma centre to be built in the memory ofUphaar Victims at any suitable place at Dwarka in New Delhi as we areinformed that Dwarka is an accident-prone area but does not have anygovernmental infrastructure or public health care centre to treat accidentvictims. For this purpose, the State of Delhi, as DVB which is/was aninstrumentality of the State, shall allot at least five acres of land ormore at any suitable location at Dwarka within a period of four months ofthis judgment and order on which a trauma centre for accident victims alongwith a Super speciality department/ward for burn injuries shall beconstructed to be known as the “Victims of Uphaar Memorial Trauma Centre”or any other name that may be suggested by AVUT/Uphaar Victims’Association. This trauma centre shall be treated as an extension centre ofthe Safdarjung Hospital, New Delhi which is close to Uphaar Theatre and wasthe accident site which is hard-pressed for space and desperately needsexpansion considering the enormous number of patients who go there fortreatment. The trauma centre to be built at Dwarka shall be treated as anextension centre of the Safdarjung Hospital to be constructed by therespondent-accused Sushil Ansal and respondent-accused Gopal Ansal underthe supervision of the Building Committee to be constituted which shallinclude Secretary General of the Supreme Court, Registrar Administration ofthe Supreme Court along with a representative of AVUT nominated by theAssociation and the Hospital Superintendent, Safdarjung Hospital, New Delhiwithin a period of two years from the date of allotment of the plot of landby the State of Delhi which shall be run and administered by theauthorities of the Safdarjung Hospital Administration as its extensioncentre for accident victims.”2. In view of the difference of opinion between the two learned judgesregarding quantum of sentence, the matter has been placed before us inpursuance of the following order dated 5.03.2014 :-“4. Criminal Appeals No. 597, 598 and 599 of 2010 filed by the appellantsin those appeals and Criminal Appeals No. 605, 606 and 613 of 2010 filed bythe State and Criminal Appeals No. 600-602 of 2010 filed by the Associationof Victims of Uphaar Tragedy to the extent the said appeals involve thequestion of quantum of sentence to be awarded to the convicted appellantsin the appeals mentioned above shall stand referred to a three-JudgeBench”.3. We have heard the learned counsel appearing for the parties and havealso carefully gone through that portion of the judgment, whereby thesentence has been imposed upon the Appellants.4. Upon hearing the learned counsel and on perusal of the recordpertaining to the case, we find that the root cause of the fire was 1000KVA transformer installed and maintained by the Delhi Vidyut Board (DVB),which was in the premises of Uphaar Cinema. The said 1000 KVA transformer,even though located within the Uphaar cinema premises, did not belong tothe appellants.5. The said transformer caught fire on 13.6.1997 around 6.55 a.m.damaging the area surrounding the transformer. The fire was brought undercontrol by 7.25 a.m. and it was repaired by two employees of the DVB alongwith Senior Fitter, Bir Singh, who were possibly not highly qualified inthe field of Electrical Engineering. The repairs were carried out withoutuse of any special equipment. The said transformer was recharged forresumption of electric supply by 11.30 a.m. on the same day.6. As the factual matrix would further unfurl, on the fateful day,around 3:00pm, the matinee show of film ‘Border’ started. Between 3:55 and4:55 p.m., there was a general power shut down; however the Cinema showcontinued. Immediately, on resumption of electricity at 4:55 pm, there wasintense and heavy sparking in the DVB transformer, which led to B phasecable detaching, sliding down of the B phase cable, forming an arc andultimately resulting in rupture of the Transformer fin. Through this slit,the transformer oil spilled out, caught fire and consequently set ablazeseveral vehicles parked nearby in the stilt floor. This fire generated hotthick black smoke, which travelled upwards, accelerated by a Chimneyeffect.7. The smoke entered the hall from the staircases, air conditioning ductsas well as the area beneath the screen and the audience sitting in theground floor of the auditorium escaped immediately. The audience sittingin the balcony found it hard to escape as there were no lights due to lackof power supply, nor were there any emergency lights or lights to giveindication about the exit. Moreover, there were no warnings through publicaddress system for immediate evacuation in an orderly manner. The closureof the right side exit, elimination of one exit and the narrowing ofanother exit as well as introduction of certain seats near the left sideexit, together with bolting of certain doors in the balcony caused panicand resulted in delayed escape of most of the spectators occupying balconyseats. Most of the spectators were subsequently rescued by the firefighters, but they were severely affected by the smoke. The fire was soondeclared a major one and rescue operations continued till about 7:30pm. Theentire mishap claimed lives of 59 persons besides injuries to nearly 100others.8. It is pertinent to note here that initially there were two exits inthe balcony portion of the cinema theatre. One portion was open as an exit,whereas another had been closed down on account of certain additional seatsplaced near the exit. The additional seats were arranged with permissionof all authorities concerned and even the second exit had also been closedwith permission of all authorities concerned. The representatives of thedepartments concerned like Home Department, Police Department, FireDepartment, etc. had visited the theatre before giving necessary permissionfor increase in the number of seats, approval of the changed layout ofseats and for closure of the second exit.9. Under these circumstances, when another exit had been closed onaccount of arrangement of additional seats, which had been done with properpermission of the concerned authorities, the spectators of the balcony hadto rush only towards one exit which was leading to the staircase, alreadyoccupied with toxic gases including carbon monoxide.10. Due to inhalation of toxic gases including carbon monoxide, most ofthe spectators, who had occupied balcony seats, collapsed in the balcony oron the staircase and ultimately the unfortunate mishap, which is thesubject matter of this case, took place.11. In view of the aforestated undisputed facts, the issue with regard toimposition of sentence upon the appellants is to be decided by us. We areconcerned with imposition of sentence in a criminal case and not withawarding damages in a civil case. Principles for deciding both aredifferent.12. In the instant case, we are only concerned with imposition ofappropriate sentence for the reason that the appellants have already beenconvicted of the offences under Sections 304-A/337/338 read with Section 36of the Indian Penal Code (IPC) and Section 14 of the Cinematograph Act,1952 and the conviction has been affirmed by this Court.13. One can say that if the second exit leading to another staircase hadnot been closed, possibly the damage and deaths could have been less. Thereason for which the second exit was closed was arrangement of additionalseats and change of layout of seats in the balcony. The appellants, theowners of the cinema premises, were aware of the fact that one exit hadbeen closed due to addition of seats and change in the layout of the seatsand the said fact could have exposed the spectators to the risk theyactually faced, which ultimately resulted into the abovesaid mishap. Bethat as it may, the fact remains that the appellants have been found guiltyand they have been convicted.14. On the issue of sentence, one of our brother Judges, T.S. Thakur, J.has upheld rigorous imprisonment of one year which has been imposed by theHigh Court. So far as Gyan Sudha Misra, J. is concerned, she was of theview that the sentence imposed was insufficient and therefore, it should beenhanced and possibly because the heirs of the victims were not interestedin getting compensation, she was of the view that appropriate fine shouldbe imposed upon the appellants, which should be used for a public purposeso that in future, in the event of any such mishap, the injured persons canbe given prompt and effective treatment. The learned Judge had, therefore,perhaps rightly thought about imposing rigorous imprisonment of oneadditional year and looking at the fact that the victims had already losttheir lives and the amount of fine which could be recovered from theappellants can be used for a better public purpose, the learned Judgeimposed fine of Rs.50 crore on each of the appellants in lieu of theadditional sentence which had been proposed by observing:-“40. Hence, I am of the view that interest of justice to some extent wouldbe served by imposing on the Accused Appellants a substantial fine and notmerely a jail sentence. Thus, while the sentence of one year imposed by theHigh Court is upheld, the additional sentence of one year further whileallowing the appeal of AVUT, is fit to be substituted by a substantial sumof fine to be shared equally by the Appellants Sushil Ansal and Gopal Ansalalong with DVB which also can not absolve itself from compensating thevictims of Uphaar tragedy represented by the AVUT”.“42. But while allowing the appeal of AVUT and CBI, I take note of the factthat since Sushil Ansal is now more than 74 years old and was running thetheatre business essentially along with his brother Appellant No. 2 GopalAnsal, I consider that the period of enhanced sentence in these appealsimposed on the Appellants Sushil Ansal and Gopal Ansal may be substitutedwith substantial amount of fine to be specified hereinafter and paid in theappeal bearing Nos. 600-602 of 2010 preferred by AVUT and Criminal AppealNos. 605-616 of 2010 preferred by the CBI which shall be shared by theAppellant Sushil Ansal and Appellant Gopal Ansal in equal measure alongwith the Delhi Vidyut Board as I have upheld the sentence imposed on theiremployees too. My view stands fortified by the order passed in the case ofBhopal Gas Leak Tragedy where the punishment for criminal negligence wasallowed to be substituted by substantial compensation which were paid tothe victims or their legal representatives”.15. Shri Ram Jethmalani, learned senior counsel, submitted that in thefacts and circumstances of the present case, the amount of fine of Rs.100crore may be reduced and the view expressed by Misra, J. to reduce thesentence of appellant - Sushil Ansal (A-1) to the period already undergoneconsidering his advanced age, be also made applicable to Gopal Ansal (A-2)on the principle of parity. He submitted that both the appellants hadalready undergone substantial part of the sentence out of sentence of oneyear awarded to them and were willing to pay substantial amount towardsfine in lieu of the undergoing remaining period of sentence. He alsopointed out that out of one year sentence, they had already undergonesubstantive sentence of 5-6 months and with remissions, sentence undergoneworked out to about nine months.16. We have duly considered the matter. It hardly needs to be mentionedthat an appropriate sentence has to be awarded by taking into considerationthe gravity of offence, the manner of commission, the age of the accusedand other mitigating and aggravating circumstances. The sentence shouldneither be excessively harsh nor ridiculously low.17. We are conscious of the fact that matter of this magnitude may callfor a higher sentence, but the Court has to limit itself to the choiceavailable under the law prescribing sentence. The fact that remains is thatthe maximum sentence prescribed under the law is period of two years andthe High Court had chosen, in the facts and circumstances of the case, toaward sentence of one year which has been approved by Thakur, J. In thedissenting opinion by Misra, J. the modification is that the sentence beenhanced but giving an option to pay substantial amount in lieu of theenhanced sentence with further direction to reduce the jail sentence to theperiod already undergone, if the amount of fine in lieu of enhancedsentence is paid.18. After having considered the facts of the case, the views expressed byboth the learned Judges and the arguments advanced by the learned counselappearing for both sides, we are in agreement with the view expressed byMisra, J. that sentence awarded by the High Court needs to be enhanced tothe maximum period of two years under Section 304-A but in lieu ofadditional period of sentence of one year, the substantial amount of fineneeds to be imposed. We are further of the view that in case the saidamount of fine is paid, the sentence should be reduced to the periodalready undergone, as indicated by Misra, J. in the case of Sushil Ansal(A1). On the principle of parity, the case of Gopal Ansal (A2) will standon the same footing as that of Sushil Ansal (A1). Thus, we are of theconsidered opinion that ends of justice would meet if the appellants aredirected to pay fine so that the amount of fine can be used either for thepurpose of setting up a Trauma Centre in NCT of Delhi or for upgradingTrauma Centres of Hospitals managed in NCT of Delhi by the Government ofDelhi.19. We, therefore, direct that a fine of Rs.30 crore on each appellantshould be imposed and if the said fine is paid within a period of threemonths, the sentence of the appellants be reduced to the sentence alreadyundergone. We have noted the fact that as appellant no.1 is fairly aged,it may not be fruitful to ask him to undergo rigorous imprisonment. On theground of parity and on the peculiar facts of this case, so far asappellant no.2 may also not be constrained to undergo the sentence, if healso pays the same amount of fine. If the aforestated amount is not paidwithin three months from the date of order dated 19th August, 2015, theappellants shall undergo two years’ rigorous imprisonment, including thesentence already undergone.CRIMINAL APPEAL NO. 599/201020. As regards the conviction of Appellant H.S. Panwar (A-15) assailed inCriminal Appeal No. 599/2010, the Ld. Judges dismissed the afore-saidappeal and affirmed the conviction u/s. 304-A/337/338 read with S. 36 IPC.On the question of quantum of sentence qua Appellant H.S. Panwar (A-15),the matter was placed before us as stated above.21. In view of the facts discussed above and on the ground of parity, wedirect that Appellant Harsarup Panwar (A-15) shall stand sentenced toundergo rigorous imprisonment for one year. However, having regard toadvanced age and diseases like alzheimer’s disease suffered by the accusedand other peculiar facts and circumstances, if he pays Rs.10 lakh by way offine, the sentence will stand reduced to the period already undergone. Ifhe fails to pay the aforestated amount within three months from the orderdated 19th August, 2015, he shall undergo the sentence of one year,including the term which he has already undergone. Now, we have beeninformed that Appellant Harsarup Panwar (A-15) has already paid Rs.10 lakhas per operative order pronounced on 19th August, 2015.22. The aforestated fine imposed upon the appellants in Criminal AppealsNo. 597, 598 and 599 of 2010 filed by Sushil Ansal (A-1), Gopal Ansal (A-2)and Harsarup Panwar (A-15) shall be given by way of a demand draft to theChief Secretary of Delhi Government for setting up a new trauma centre orfor upgrading the existing trauma centres of hospitals managed by theGovernment of NCT of Delhi.CRIMINAL APPEAL NOs.600-602, 605, 606 and 613 of 201023. Consequently, Criminal Appeal No. 605, 606 and 613 of 2010 filed by theState and Criminal Appeal No. 600-602 of 2010 filed by the Association ofVictims of Uphaar Tragedy are disposed of.24. In view of the above order, the impugned judgment stands modified sofar as the question of imposition of sentence is concerned and the appealsare disposed of as partly allowed.25. We had passed the operative part of the order on 19th August, 2015,but since the Court time was almost over, we have now given the reasons forthe said order. ... Justice Anil R Dave ... Justice Kurian Joseph ... Justice Adarsh Kumar GoelNEW DELHISEPTEMBER 22, 2015

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