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REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.597 OF 2010

SUSHIL ANSAL          .....APPELLANT

        VERSUS

STATE THROUGH CBI      …..RESPONDENT

  WITH

CRIMINAL APPEAL NO.598 OF 2010

GOPAL ANSAL             .....APPELLANT

        VERSUS

STATE THROUGH CBI      …..RESPONDENT

   WITH

CRIMINAL APPEAL NO.599 OF 2010

HARSARUP PANWAR                    ……APPELLANT        

        VERSUS

STATE THROUGH CBI      …..RESPONDENT

   WITH

CRIMINAL APPEAL NOs.600-602 OF 2010,  605 OF 2010, 606 OF 2010 AND 613 OF 2010

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J U D G M E N T

ANIL R. DAVE, J.

CRIMINAL APPEAL NOS.597 AND 598 OF 2010

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 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  conviction  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 view that in lieu of the enhanced  sentence  of  a  period  of  one  year which I allow in the appeals preferred by AVUT and CBI, the same be substituted with a fine of Rs  100  crores  (one  hundred  crores)  to  be shared and paid by A-1 Sushil Ansal and A-2 Gopal Ansal in equal measure i.e. Rs 50 crores each and Rs 100 crores in all, and shall be paid by way of a demand draft issued in the name of the Secretary General of the Supreme Court of

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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 along with a Super  speciality  department/ward  for  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  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  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 of land by the State of Delhi which shall be

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run and administered by the authorities of the Safdarjung  Hospital  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 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 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 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 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 by the Delhi Vidyut Board (DVB), which was

in the premises of Uphaar Cinema. The said 1000 KVA

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transformer,  even  though  located  within  the  Uphaar

cinema premises, did not belong to the 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 under control by 7.25

a.m. and it  was repaired by two employees of  the DVB

along with Senior Fitter, Bir Singh, who were possibly not

highly qualified in the field of 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.

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 heavy  sparking  in  the

DVB transformer, which led to B phase cable detaching,

sliding down of  the B phase cable,  forming an arc and

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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  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  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 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 panic and resulted in delayed escape of most of

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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  major  one  and  rescue  operations

continued till about 7:30pm. The entire mishap claimed

lives of 59 persons besides injuries 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 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  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.

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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  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  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 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

imposition of appropriate sentence for the reason that the

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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

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  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  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  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

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year 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 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 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 Rs.50 crore on each of the

appellants in lieu of  the additional  sentence which had

been proposed by observing:-

“40.  Hence,  I  am of  the  view  that  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

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the  High  Court  is  upheld,  the  additional sentence of one year further while allowing the appeal  of  AVUT,  is  fit  to  be  substituted  by  a substantial sum of fine to be shared equally by the  Appellants  Sushil  Ansal  and  Gopal  Ansal along with DVB which also can not absolve itself from  compensating  the  victims  of  Uphaar tragedy represented by the AVUT”.  

“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  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”.  

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

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sentence of appellant - Sushil Ansal  (A-1) to the period

already undergone considering his advanced age, be also

made applicable to Gopal Ansal  (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 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

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, 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.  

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17. We  are  conscious  of  the  fact  that  matter  of  this

magnitude may call for a higher sentence, but the Court

has to limit  itself  to the choice available under the law

prescribing sentence.  The fact  that  remains is  that  the

maximum sentence prescribed under the law is period of

two years and the High Court had chosen, in the facts

and circumstances of the case, to award sentence of one

year  which  has  been  approved  by  Thakur,  J.   In  the

dissenting opinion by Misra,  J.  the modification is that

the  sentence  be  enhanced  but  giving  an option  to  pay

substantial amount in lieu of the enhanced sentence with

further direction to reduce the jail sentence to the period

already  undergone,  if  the  amount  of  fine  in  lieu  of

enhanced sentence is paid.  

18. After  having  considered  the  facts  of  the  case,  the

views  expressed  by  both  the  learned  Judges  and  the

arguments advanced by the learned counsel appearing for

both sides, we are in agreement with the view expressed

by Misra,  J.  that  sentence  awarded by the  High Court

needs to be enhanced to the maximum period of two years

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under Section 304-A but in lieu of  additional  period of

sentence of one year, the substantial amount of fine needs

to be imposed.  We are further of the view that in case the

said  amount  of  fine  is  paid,  the  sentence  should  be

reduced to the period already undergone, as indicated by

Misra, J. in the case of Sushil Ansal (A1). On the principle

of parity, the case of Gopal Ansal (A2) will stand on the

same footing as that of Sushil Ansal (A1).  Thus, we are of

the considered opinion that ends of justice would meet if

the appellants are directed to pay fine so that the amount

of fine can be used either for the purpose of setting up a

Trauma Centre in NCT of Delhi or for upgrading Trauma

Centres  of  Hospitals  managed  in  NCT  of  Delhi  by  the

Government of Delhi.  

19. We,  therefore,  direct  that  a fine of  Rs.30 crore on

each appellant should be imposed and if the said fine is

paid within a period of three months, the sentence of the

appellants be reduced to the sentence already undergone.

We have  noted the fact  that  as  appellant  no.1 is  fairly

aged, it may not be fruitful to ask him to undergo rigorous

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imprisonment.  On  the  ground  of  parity  and  on  the

peculiar facts of this case, so far as appellant no.2 may

also not be constrained to undergo the sentence, if he also

pays the same amount of fine. If the aforestated amount

is not paid within three months from the date of  order

dated 19th August, 2015, the appellants shall undergo two

years’  rigorous  imprisonment,  including  the  sentence

already undergone.  

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

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,  we  direct  that  Appellant  Harsarup

Panwar (A-15) shall stand sentenced to undergo rigorous

imprisonment  for  one year.   However,  having regard to

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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  will  stand  reduced  to  the  period  already

undergone.  If  he  fails  to  pay  the  aforestated  amount

within three months from the  order  dated 19th August,

2015,  he  shall  undergo  the  sentence  of  one  year,

including  the  term  which  he  has  already  undergone.

Now,  we  have  been  informed  that  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  Ansal  (A-1),  Gopal  Ansal  (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.

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CRIMINAL APPEAL NOs.600-602, 605, 606 and 613 of 2010

23. Consequently, Criminal Appeal No. 605, 606 and 613

of  2010  filed  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

stands modified so far  as the question of  imposition of

sentence is concerned and the appeals are 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 for the said order.  

………................................J.                                       (ANIL R. DAVE)

            ………................................J.

                                     (KURIAN JOSEPH)

                          ………...............................J.

                                              (ADARSH KUMAR GOEL) NEW DELHI SEPTEMBER 22,  2015