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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITION

CRIMINAL APPEAL NO.597 OF 2010

Sushil Ansal …Appellant

Versus

State Through CBI …Respondent

(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010,  604/2010, 605-616/2010 and 617-627/2010)

J U D G M E N T

T.S. THAKUR, J.

Enforcement of laws is as important as their enactment,  

especially where such laws deal with safety and security of  

citizens  and  create  continuing  obligations  that  call  for  

constant vigil by those entrusted with their administration.  

Callous  indifference  and  apathy,  extraneous  influence  or

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considerations  and  the  cynical  “Chalta  Hai” attitude  more  

often  than  not  costs  the  society  dearly  in  man-made  

tragedies whether in the form of fire incidents, collapse of  

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

lived media attention followed by investigations that at times  

leave the end result flawed and a long winding criminal trial  

in which the witnesses predecease their depositions or switch  

sides under pressure or for gain and where even the victims  

or  their  families  lose  interest  brings  the  sad  saga  to  an  

uncertain  end.  A  somewhat  similar  story  is  presented  in  

these  appeals  by  special  leave  arising  out  of  a  common  

judgment and order dated 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 Association of Victims of Uphaar  

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

persons besides injuries to nearly 100 others.

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

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

while upholding the convictions of the rest with or without  

modification  of  the  nature  of  offence  in  some  cases  and  

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

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

Court and the extent and nature of modification made to that  

by the High Court in the impugned judgment.

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

valuable human lives took place in the heart of the capital  

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

Park Extension area on 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 High Court and even before us there was no  

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

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

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the broad narration of the facts as are available from the  

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

Court, which are as under:

The Incident:

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

square yards at Green Park Extension Shopping Centre, New  

Delhi,  comprised  a  cinema  auditorium  with  a  sanctioned  

capacity of 750 seats besides a balcony with a sanctioned  

capacity of 250 seats. The cinema auditorium comprised the  

first  floor  of  the  cinema  complex  while  the  balcony  was  

constructed  on  the  second  floor.  The  ground  floor  of  the  

building  comprised  a  parking  lot  besides  three  separate  

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

a 500 KVA electric transformer that supplied electric energy  

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

1000 KVA transformer that was installed and maintained by  

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

is common ground that the second transformer even though

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located within the cinema premises, did not supply electricity  

to the cinema but rather to some of the tenants occupying  

parts of the commercial complex that formed a part of the  

building and some other consumers from the locality.  

5. The prosecution case is that on 13th June, 1997 at about  

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

maintained  by  DVB  on  the  ground  floor  of  the  Uphaar  

Cinema  building  caught  fire.  The  fire  was  brought  under  

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

Superintendant of the DVB and his team revealed that three  

of the low tension cable leads of the transformer had been  

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

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

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

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

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

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

crimping  machine.  The  transformer  was  recharged  for

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resumption of electric supply by 11.30 a.m. on 13th June,  

1997.   

6. The prosecution alleges that repairs conducted on the  

transformer in the earlier part of the day were unsatisfactory  

and resulted in loose connections that caused sparking on  

the  B-Phase  of  the  transformer  where  such  repairs  were  

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

cables  of  the  transformer  which  eventually  came  off  and  

started dangling loose along the radiator and burnt a hole in  

the radiator fin. Through this hole the transformer oil started  

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

loose cable touching against the radiator, ignited the oil at  

about 4.55 p.m. on 13th June, 1997. Since the transformer  

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

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

enclosure continued leaking and spreading the  fire  to  the  

adjacent parking lot where cars were parked at a distance of  

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

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

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ground floor of the cinema hall were ablaze. Smoke started  

billowing in  the  northern  and  southward  directions  in  the  

parking  lot  of  the  cinema  complex.  The  northern  bound  

smoke encountered a gate which was adjacent to a staircase  

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

chimney  effect,  the  smoke  gushed  into  the  stairwell  and  

eventually  entered  the  cinema auditorium through  a  door  

and through the air conditioning ducts. The southward bound  

smoke similarly travelled aerially through another staircase  

and into the lower portion of the balcony of the auditorium  

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

people were seated in the auditorium enjoying the matinee  

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

theme. Because of smoke and carbon monoxide released by  

the burning oil and other combustible material, the people in  

the auditorium started suffocating.  

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

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

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

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Uphaar Cinema at the relevant point of time, regarding the  

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

transformer in question was connected was switched off and  

the flow of energy to the cinema complex stopped. According  

to the prosecution the supply of the 11 KV outgoing Green  

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

the supply of energy to the cinema.

8. Inside the auditorium and balcony there was complete  

pandemonium. The people in the balcony are said to have  

rushed towards the exits in pitch darkness as there  were  

neither  emergency  lights  nor  any cinema staff  to  help  or  

guide  them.  The  prosecution  alleged  that  no  public  

announcement regarding the fire was made to those inside  

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

off, no matter the management and the employees of the  

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

out. Even the Projector Operator was not given instructions  

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

informed about the situation outside. On the contrary, the

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

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

left  his  duty  without  handing over  charge  to  his  reliever.  

More importantly, the prosecution case is that the addition of  

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

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

52 extra seats over the years had completely blocked the  

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

gangway on the right of the middle entrance was significantly  

narrower than required under the regulations. It was alleged  

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

the cinema hall, had knowledge of these deviations from fire  

safety  norms despite  which they  had continued exhibiting  

films,  thereby  endangering  the  lives  of  all  those  who  

patronized the theatre.   All  these obstructions, deviations,  

violations and deficiencies had, according to the prosecution,  

resulted in the victims getting trapped in the balcony for at  

least  10-15  minutes  exposing  them  to  lethal  carbon

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monoxide,  to  which  as  many  as  59  persons  eventually  

succumbed.   

9. Rescue operations attempted by the fire tenders from  

the Bhikaji Cama Place and Safdarjung Fire Stations were  

undertaken after the Delhi Fire Service received a complaint  

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

fire tenders took nearly forty five minutes to one hour to  

extinguish the fire and to rescue the persons trapped in the  

balcony by opening the bolted doors and taking those who  

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

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

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

rescue operations.   

Investigation and Charges:

10. Investigation  into  the  fire  incident  and  the  resultant  

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

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

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

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management of the cinema complex. The investigation was  

initially conducted by the Delhi Police but was soon thereafter  

transferred  to  the  Crime  Branch  and  eventually  to  the  

Central Bureau of Investigation under the Delhi Special Police  

Establishment  Act,  1946.  The  CBI  registered  case  bearing  

No.RC-3(S)/97/SIC.IV/New Delhi on 25th July, 1997.   

11. The investigating agencies first looked into the incidents  

of  fire  and  got  prepared  and  seized  the  record  relevant  

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

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

which dealt with the nature of repair that was conducted on  

the DVB transformer after the first incident. The investigating  

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

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

the cinema auditorium and the balcony. A report from the  

Central Building Research Institute was also obtained by the  

investigating  agencies  on  17th August,  1997  under  the  

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

Singh,  Executive  Engineer  (Electrical),  PWD  was  also

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obtained by the investigating officers on 29th June, 1997, in  

addition to two CFSL reports prepared by Dr. Rajender Singh  

forwarded to the Hauz Khas Police Station on 27th June, 1997  

and to the CBI on 11th August, 1997. These reports were  

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

12. The investigating officers also examined the cause of  

malfunctioning of the DVB transformer and obtained a report  

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

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

Inspector  on  25th June,  1997.  The  report  obtained  from  

Professor M.L. Kothari of IIT, New Delhi, on 2nd July, 1997  

analysed and attributed the cause of fire to malfunctioning of  

the DVB transformer.

13. The  investigating  agencies  then  looked  into  the  fire  

safety deviations in the Uphaar Cinema building to determine  

whether the same had contributed to the fire and hindered  

the escape of those seated in the cinema auditorium and  

balcony  from  the  poisonous  carbon  monoxide  that  had  

polluted the atmosphere inside the complex. Reports from

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Executive Engineers, MCD were also obtained in this regard.  

A Panchnama depicting floor-wise deviations in the Uphaar  

Cinema  building  and  an  Inspection-cum-Scrutiny  report  

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

also submitted by the MCD to the CBI on 11th August, 1997.

14. Similarly,  the  investigating  agencies  collected  a  fire  

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

regarding the rescue operations conducted by the fire service  

personnel on the date of the occurrence.  

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

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

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

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

1997,  the  investigating  officers  concluded  that  the  rapid  

death of the victims could have been caused by inhalation of  

a combination of toxic gases including carbon monoxide and  

sulphur  dioxide  which  were  produced  by  combustion  of  

articles like diesel, petrol, rubber and styrene.

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16. Statements of a large number of witnesses relevant to  

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

the investigating agencies from time to time culminating in  

the  filing  of  a  common  chargesheet  against  16  persons  

accusing them of commission of several offences punishable  

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

provisions  of  the  Cinematograph  Act,  1952.  What  is  

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

14  were  charged  with  commission  of  offences  punishable  

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

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

to A-8 comprising the management and gatekeeper of the  

Cinema  were  charged  with  commission  of  offences  

punishable under Sections 304, 337, 338 read with Section  

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

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

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

charged with the commission of offences punishable under  

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

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

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

were charged with commission of offences punishable under  

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

17. Since  some  of  the  offences  with  which  the  accused  

persons were charged were triable by the Court of Sessions,  

the  case  was  committed  for  trial  to  Additional  Sessions  

Judge, New Delhi, who framed specific charges against Sushil  

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

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

to be brothers, were charged with offences punishable under  

Sections 304A read with Section 36 and Sections 337 and  

338  read  with  Section  36  IPC  for  their  negligent  acts  of  

omission and commission of allowing installation of the DVB  

transformer, various structural and fire safety deviations in  

the building in violation of various Rules and not facilitating  

the escape of patrons which caused the death of 59 persons  

and simple and grievous injuries to 100 others in the fire  

incident  mentioned  above.  They  were  also  charged  under

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Section 14 of the Cinematograph Act, 1952 for contravention  

of  the  provisions of  the  Delhi  Cinematograph Rules,  1953  

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

Cinematograph  Rules,  1981  (hereinafter  referred  to  ‘DCR,  

1981’).   

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

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

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

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

charged  with  commission  of  offences  punishable  under  

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

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

alert  and  facilitate  the  escape  of  the  patrons  from  the  

balcony during the fire while knowing fully well that their act  

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

to cause death.  

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

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

punishable under Section 304 read with Section 36 IPC in

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that they had not used the required crimping machine while  

repairing the DVB transformer after the first fire incident on  

13th June, 1997 knowing fully well that this could and did  

cause the transformer to catch fire once again and result in  

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

persons in the building.  

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

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

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

deceased,  were  charged  with  offences  punishable  under  

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

causing the death of 59 persons and simple and grievous  

injuries  to  100  others  by  their  acts  and  omissions  of  

negligently  issuing  No  Objection  Certificates  to  Uphaar  

Cinema without ensuring that the statutory requirements for  

fire safety and means of escape were adhered to.

22. All  the  accused  persons  pleaded  not  guilty  to  the  

charges framed against them and claimed a trial. Not only  

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

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Court against the order framing charges passed by the Trial  

Court which were dismissed by the High Court in terms of  

four separate orders passed by it. A Special Leave Petition  

filed against the order  of dismissal of the writ petition by  

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

of this Court dated 12th April, 2002.                 

Evidence at the Trial  :   

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

witnesses in support of its case apart from placing reliance  

upon  nearly  893  documents  marked  in  the  course  of  the  

proceedings. The oral evidence adduced broadly comprised  

depositions of witnesses whom providence helped to escape  

alive  from the  cinema complex on  the  fateful  day.  These  

witnesses narrated the events inside the cinema hall and the  

confusion  that  prevailed  after  people  started  suffocating  

because of smoke entering from in front of the screen and  

through the AC ducts before the hall was eventually plunged  

into darkness, leaving the people inside trapped without any

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emergency lights or help coming from any quarter. Those in  

the balcony found that they could not escape since all the  

doors were  locked.  The  depositions comprising Kanwaljeet  

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

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

graphic accounts of  the situation that  prevailed inside the  

cinema hall and the rescue operations after the Fire Brigade  

arrived to help them out.   

24. The evidence also comprised the depositions of Neelam  

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

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

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

relatives of some of the victims, who narrated their travails  

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

Neelam  Krishnamoorthy  (PW-4)  happens  to  be  the  

unfortunate mother of two who were seated in the rightmost  

two seats in the front row of the balcony.   

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

rescue  operations  were  also  examined by the  prosecution

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

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

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

open the balcony door until he received help of two other  

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

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

and  Junior  Engineer  respectively  of  the  MCD  were  also  

recorded. A large number of 14 witnesses were examined to  

prove  the  structural  deviations  in  the  building  upon  an  

inspection conducted after the fire incident. An equally large  

number of 33 witnesses were examined to prove documents  

relied  upon  by  the  prosecution.  Witnesses  were  also  

examined  to  prove  the  sanction  orders  issued  by  the  

competent authority to prosecute some of the accused who  

happened  to  be  public  servants.  Evidence  regarding  the  

ownership, management and administration of the company  

which  owned  Uphaar  Cinema,  M/s  Green  Park  Theaters  

Associated (P) Ltd. was also adduced.

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26. Medical  evidence  led  at  the  trial  comprised  the  

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

certificates of 41 victims in which the cause of death was  

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

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

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

DVB and those connected  with the  investigation too were  

examined by the prosecution before closing its case.  

Findings of the Trial Court:

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

including  the  depositions  of  three  defence  witnesses,  one  

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

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

may be summarized as under:  

(a) That  Uphaar  Cinema was owned by  a  company  

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

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

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that several violations regarding the installation of a   

transformer  and  the  seating  arrangement  in  the  

balcony,  structural  deviations  in  the  building  were   

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

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

of  the  said  company.  Even  after  the  alleged  

resignation  of  the  Ansal  brothers  in  the  year  1988  

they continued to be in control of the management of   

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

including  exercising  control  over  the  Managers  and  

other staff employed.  

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

upon  both  documentary  and  oral  evidence  adduced  

before it by the prosecution. The Trial Court found that  

application  dated  2nd February,  1973  made  to  the  

erstwhile  DESU for  grant  of  electricity  connection  for  

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

also  letter  dated  2nd February,  1973  by  which  the  

company had agreed to give DESU two rooms for their

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transformer and HT and LT panels at a nominal rent of  

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

fact that the original licence granted to Uphaar Cinema  

was  granted  in  favour  of  M/s  Green  Park  Theatres  

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

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

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

representative licensee for the cinema was also relied  

upon by the Trial Court in support of its conclusion that  

Sushil Ansal (A-1) exercised control and management  

over  Uphaar  Cinema  at  the  relevant  point  of  time.  

Reliance was also placed by the Trial Court upon letter  

dated 19th June, 1974 written on behalf of GPT by Sushil  

Ansal  (A-1)  whereby  the  Entertainment  Officer  was  

requested to permit the owner to lease out the top floor  

of Uphaar Cinema for office use and the ground floor for  

commercial  establishments.  An  affidavit  dated  21st  

March,  1975 and letter  dated  2nd April,  1979 filed in  

connection with renewal of the cinema license were also

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relied upon by the Trial Court to show that Sushil Ansal  

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

also that he had held himself out in that capacity before  

the  concerned  authorities.  Letter  of  authority  

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

and make corrections in the building plan as well as to  

collect the sanction plan on his behalf as also reply to  

show-cause notice dated 11th May, 1981 issued by the  

Deputy  Commissioner  of  Police  (Licensing)  [in  short,  

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

licensee for GPT were relied upon by the Trial Court to  

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

person exercising control over the affairs of the cinema  

and its Managing Director.

(2) The Trial Court noted that although Sushil Ansal  

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

company on 17th October, 1988, he had continued to be  

the  licensee  of  the  cinema  as  is  evident  from  an  

affidavit dated 3rd March, 1992 (Ex. PW50/B) addressed

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

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

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

continued to be the occupier of the licensed premises  

and the owner of the Cinematograph. Minutes of the  

meeting  of  the  Board  of  Directors  held  on  24th  

December, 1994 were also noticed by the Trial Court to  

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

Directorship of the company in 1988 he had continued  

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

the  capacity  of  a  Special  Invitee.  Reliance  was  also  

placed by the Trial Court upon the inspection proformas  

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

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

licensee of Uphaar Cinema.

(3) The Trial Court placed reliance upon the financial  

authority and the control exercised by Sushil Ansal (A-

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

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

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26th June, 1995 for a sum of rupees fifty lakhs drawn by  

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

the date of occurrence, the Board of Directors of the  

company had on 25th March, 1996 passed a resolution  

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

accounts of the company upto any amount. The Trial  

Court also relied upon other circumstances to support  

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

have resigned from the Directorship of the company in  

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

the  company  and  in  complete  management  of  the  

cinema  affairs.  Reliance  was  also  placed  upon  Ex.  

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

authorized signatory to operate  the Current  Accounts  

with various banks.

(4) The  Trial  Court  similarly  referred  to  and  relied  

upon several pieces of documentary evidence in holding  

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

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

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relied  upon  the  resolution  of  the  Board  of  Directors  

passed on 15th July, 1972 (Ex.PW103/XX) according to  

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

documents,  drawings  and  other  connected  papers  

regarding the submission of revised plans, applications  

for  electricity connections concerning Uphaar  Cinema,  

etc.  Letter  dated  24th May,  1978 (Ex.  PW110/AA20),  

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

seeking permission to install  an eight-seater  box and  

reply  dated  6th December,  1979  to  the  show-cause  

notice  for  removal  of  one  hundred  extra  seats  after  

withdrawal of the 1979 resolution which was signed by  

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

upon by the Trial Court. Similarly, letter dated 29th July,  

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

additional seats in the balcony was found to have been  

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

the  show-cause  notice  dated  28th May,  1982  was  

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

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as  Director  of  GPT  in  which  he  tried  to  explain  the  

reasons for the bolting of doors from the inside during  

exhibition of a film and gave assurance that the utmost  

precaution  would  be  taken  by  the  management  in  

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

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

as Director of GPT in April, 1988.

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

the Meeting held on 25th March, 1996 of the Board of  

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

as authorised signatory upto any amount to operate the  

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

subsequent to the said authorisation in favour of the  

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

from the accounts of GPT which later was rechristened  

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

upon by the Trial Court in support of its conclusion that  

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

even  after  resigning  from  the  Directorship  of  the

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company, continued to exercise control over the affairs  

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

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

appointed authorised signatory to operate the current  

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

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

the Minutes of the Meeting dated 27th February, 1997  

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

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

even a nail be put in the cinema premises without his  

prior  permission.  Similarly,  in  the  Minutes  of  the  MD  

Conferences dated 2nd April, 1997 and 1st May, 1997,  

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

instructions in this capacity regarding a large number of  

business  decisions  and  day-to-day  affairs  of  the  

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

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

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

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

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1997 in terms of letter dated 9th May, 1997 marked Ex.  

PW98/X-C.  

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

the  cinema  premises  in  complete  violation  of  the  

Electricity Rules and in breach of the sanctioned plan  

for the building.   

(1) The  Trial  Court  found  that  the  sanctioned  plan  

marked  Ex.  PW15  Y/3  provided  for  three  adjacent  

rooms on the ground floor each measuring 20x10 feet  

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

these three rooms was to be used for HT cables that  

would bring high voltage current from the AIIMS Grid  

Station.  The second room was to be used for installing  

the transformer that would step down the high density  

current and transmit the same to the third room which  

was meant for LT cables from where the current would  

then be supplied to the cinema building.

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

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

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concluded that it was essential for the management of  

the  cinema  to  obtain  permission  from  the  Licensing  

Department as also from the Municipal Corporation of  

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

said  transformer.  Instead  of  doing  so,  the  internal  

positioning  of  the  walls  of  the  transformer  area  

comprising  the  three  rooms  mentioned  above  was  

changed without so much as notifying the MCD about  

the said change or obtaining its sanction for the same.  

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

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

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

(PW-24).    

(3) The  Trial  Court  also  looked  into  the  Rules  

regarding installation of transformers in the Bureau of  

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

Building Bye Laws, 1983 to hold that the installation of  

the  transformer  in  question  did  not  adhere  to  the  

following three distinct requirements under the rules:

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(i) The two transformers namely one installed by  

the management of the company owning the  

cinema and the  other  installed by the  DVB  

were not separated by a fire resistant wall as  

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

1981.

(ii) The transformers did not have oil soak pits  

necessary for soaking the entire oil content in  

the transformers as required in Paras 3.6.3  

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

(iii) The rooms where the transformers were kept  

did  not  have  proper  ventilation  and  free  

movement  of  air  on  all  four  sides  of  the  

transformers, nor were adequately sized air  

inlets and outlets provided to ensure efficient  

cooling  of  the  transformers  as  required  in  

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

– 1981.  

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

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

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

for the DVB transformer by the DVB authorities.  The  

Court  found that  correspondence  exchanged between  

GPT and the DVB authorities did not suggest that the  

Ansals  were  forced  to  provide  space  for  the  DVB  

transformer as contended by them.

(c) That  the condition of  the DVB transformer  was  

wholly unsatisfactory and that the fire had started on  

account of the sparking of the loose connection of the  

cable and socket of the bar of the said transformer.      

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

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

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

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

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

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

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

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

condition  of  the  DVB  transformer  was  wholly  

unsatisfactory on account of the following:

(i) The  transformer  did  not  have  any  protection  

system as required by the Electricity Act.   

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

a  box,  unlike  in  the  case  of  the  Uphaar  

transformer.    

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

kind  of  clamping  system  or  support  for  the  

cables.   

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

Panel board of the DVB transformer which could  

have tripped in case of any fault.  

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

be loose.

(vi) There were earth  strips lying in the transformer  

room but these were not properly joined.

(vii) The  connection  between  earth  and  neutral  was

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also broken.

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

fuses.

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

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

(x) All  the  four  oil  circuit  breakers  were  completely  

unprotected  against  earth  faults  and  over  

current.

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

disconnected  condition  of  the  OCB  operation  

mechanism.  Its battery and charger were also  

found to be defective and heavily damaged in  

the fire.

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

transformer had resulted on account of the sparking by  

the loose connection of the cable end socket of the bus  

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

B-phase bus bar was unsatisfactorily repaired since it  

was fixed by hammering and not by using a crimping

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machine. The LT cable got disconnected from the cables  

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

when the live conductor of the disconnected cable fell  

upon it.  Transformer oil gushed out of the opening on  

to the floor, while continued short circuiting of the cable  

with the radiator fin in the absence of a protection relay  

system caused sparking, which in turn resulted in the oil  

from the transformer catching fire.  The sparking would  

have continued for a significant amount of time since  

there was no immediate tripping system available in the  

HT panel.  Tripping was ultimately found to have taken  

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

switch from the generator which was going to the AC  

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

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

covered fuses suggested that they had been out of use  

for a long time.   

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

cars close to the transformer in what was meant to be  

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a  16  ft.  wide  passage  for  free  movement  of  the  

vehicles aggravated the situation and contributed to   

the  incident.  The  Trial  Court  found  that  apart  from  

petrol  and  diesel  cars,  CNG  gas  cylinders  and  

upholstery  comprising  combustible  material  emitted  

smoke  when  burnt  containing  carbon  monoxide,   

carbon dioxide and other hydrocarbons which resulted  

in  suffocation  of  those  inside  the  balcony  of  the  

cinema.  

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

cinema had disregarded the requirements of  law and  

the  sanctioned plan,  thereby putting the  lives of  the  

patrons at risk. The Court found that there was nothing  

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

or  the  Managers  of  the  cinema  for  that  matter  had  

impressed upon the contractor appointed by them the  

legal  and  safety  requirements  of  maintaining  a  safe  

distance  between  vehicles  and  the  transformer  room  

when they entered into a parking contract in the year

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1988.  This,  according  to  the  Court,  was  gross  

negligence  that  contributed  to  the  death  of  a  large  

number of patrons and injuries to many more. The Trial  

Court in support of that conclusion relied primarily upon  

the following pieces of evidence:

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

Uphaar  Cinema building as  also  the  report  of  

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

according to which the provision for parking of  

fifteen cars was made on the said floor. The plan  

also earmarked a 16 feet  wide passage to be  

maintained alongside the transformer rooms for  

the easy maneuvering of vehicles.  

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

contractor,  proved  that  cars  were  parked  at  a  

distance  of  no  more  than  3-4  feet  from  the  

transformer  room.  On  the  fateful  day  parking  

tokens had been issued for 18 cars for the matinee

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

in the parking lot.

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

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

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

been aggravated due to the presence of petrol and  

diesel in the fuel tanks of the vehicles parked in  

front of the transformer rooms.  

(iv) Local  Inspection  Note  of  the  place  of  incident  

prepared by the Trial Court which supported the  

conclusion  that  cars  had  been  parked  in  close  

proximity to  the  transformer  room and that  the  

same were burnt in the incident.

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

management  in  ensuring  that  only  the  permissible  

number of vehicles were parked in the parking area and  

that  a  16  ft.  wide  passage  remained  free  from any  

obstruction were held by the Trial Court to be acts of

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gross  negligence  on  the  part  of  the  management,  

endangering the lives of the patrons visiting the cinema  

and  contributing  to  the  magnitude  of  the  hazardous  

gases  that  eventually  led  to  the  death  of  a  large  

number of innocent victims.

(e) That there were several structural deviations in   

the cinema building apart from a rear wall behind the  

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

height of 12 feet even though it was sanctioned only  

up to a height of 3 feet.   

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

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

panchnama/report of floor-wise deviations prepared by  

him along with Dalip Singh, Executive Engineer, PWD  

and  Prithvi  Singh,  DSP,  the  Court  held  that  the  

construction of the rear wall beyond 3 feet had affected  

the ventilation in the area and obstructed the dispersal  

of  smoke in the  atmosphere.  The Court  rejected the  

contention that PW-29 had been tutored since he had

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made no mention of the obstruction of smoke in the  

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

had  been  corroborated  by  the  sanctioned  plan  Ex.  

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

of 3 feet.

(2) Similarly, the Court found certain other structural  

deviations  in  the  cinema  building  some  of  which  

contributed to the fire, smoke and obstruction of escape  

claiming human  lives  by  asphyxia.  The  Court  in  this  

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

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

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

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

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

scrutiny report dated 2nd August, 1997 submitted by the  

MCD  Engineers  depicting  floor-wise  deviations  and  

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

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

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

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inspection note prepared by the Trial Court based on its  

inspection on the spot as per the direction of the High  

Court.  Based  on  the  said  evidence  the  Trial  Court  

enumerated  the  following structural  deviations  in  the  

Uphaar Cinema building:

Basement

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

staircase.

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

blower room.

(iii) A wooden store with wooden partitions was being  

used.

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

constructed and old seats were found partially filling the  

space between them.

Ground Floor/Stilt Floor

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

constructed  above  the  ramp,  behind  the  

transformer room.

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

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

height of the first floor.

(iii) Though  externally  unchanged,  the  partitions  

between the HT, LT and transformer rooms were  

shifted to alter the rooms' internal sizes.

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

used as a ticket counter.

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

Syndicate Bank.  Sanjay Press Office was found in  

place of the restaurant on the front side.

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

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

floor, to be used as offices. This was completely  

burnt in the fire.

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

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

above the stilt floor to be used as offices.

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

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the staircase leading to the basement around the  

lift well.

Foyer/First Floor       

(i) A  refreshment  counter  was  found  constructed  

between the expansion joint and the staircase.

(ii) A  second  refreshment  counter  was  constructed  

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

exit gate.

Mezzanine Floor/Balcony  

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

between the doors of the toilet and the staircase.

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

sweeper room and adjoining toilets.

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

cum-bar room.

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

staircase landing between the Projection Room floor and  

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

terrace.

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(v) Sarin Associates'  reception counter was found in  

the staircase leading to the terrace, thereby obstructing  

the passage way.

Top Floor

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

cabins  with  wooden  partitions  and  the  same  

appeared  to  be  occupied by Sarin  Associates,  

Supreme  Builders,  Supreme  Promoters,  

Supreme  Marketing  (P)  Ltd.  And  Vikky  Arin  

Impex (P) Ltd.

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

an office.

(f)   That, apart from structural deviations referred to  

above,  the  seating  arrangement  within  the  balcony  

area  of  the  cinema  was  itself  in  breach  of  the  

mandatory requirements of the   DCR, 1953 and DCR,  

1981.  

(1) Relying  upon  the  Completion  Certificate  Ex.  

PW17/DA, dated 10th April, 1973, the Trial Court held

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that the number of seats originally sanctioned for the  

balcony was limited to 250 seats (two hundred and fifty  

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

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

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

sides  of  the  balcony  and  the  third  in  the  middle.  

Gangways leading to these exits were also found to be  

in  conformity  with  the  statutory  requirements  which  

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

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

for  installation  of  14  seats  in  what  was  originally  

sanctioned  by  the  MCD  to  be  an  Inspection  Room,  

pursuant whereto the Inspection Room was converted  

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

authority.  Two  years  later,  a  development  of  some  

significance  took  place  inasmuch  as  by  a  Notification  

dated 30th September, 1976 issued by the Lt. Governor  

of Delhi, Uphaar Cinema permitted addition of 100 more  

seats to  its  existing capacity. Forty three of the said

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additional  seats  were  meant  to  be  provided  in  the  

balcony by using the vertical gangways to the right of  

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

the balcony. The remaining 57 seats were meant for  

addition in the main auditorium of the cinema hall. The  

addition  of  these  seats  was  approved  on  30th  

September, 1976 as per the seating plan marked  Ex.  

PW95/B-2.  

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

along the rightmost wall of the balcony was completely  

utilized and blocked because of the installation of the  

additional  seats  whereas  the  width  of  the  gangway  

along  the  right  side  of  the  middle  entry/exit  was  

reduced  to  22.5  inches,  the  remainder  of  the  space  

having been utilized for fixing 32 additional seats in that  

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

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

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

43  additional  seats  permitted  under  the  Notification.

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The Trial Court found that in order to compensate for  

the blocking and narrowing of the gangways in the right  

wing,  the  seating  plan  provided  for  a  44  inch  wide  

vertical gangway along the middle of the right wing of  

the  balcony.   Inevitably,  the  altered  seating  

arrangement made it relatively more difficult for those  

occupying the right wing of the balcony to reach the  

exit.   

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

year 1978 upon an application moved by Gopal Ansal   

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

right  side  exit,  access  to  which  already  stood  

compromised on account of the additional seats.   

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

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

the  relevant  time was posted  as  Executive Engineer,  

PWD and who appears to have inspected the site on  

27th June,  1978 on a  reference  made to  him by the  

Entertainment Tax Officer. What is significant is that the

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Entertainment Tax Officer had by his letter  dated 2nd  

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

confirm his report pursuant to the inspection conducted  

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

Schedule of DCR, 1953, which required that the total  

number  of  spectators  accommodated  in  the  building  

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

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

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

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

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

the  eight-seater  box  was  in  accordance  with  the  

prevalent DCR, 1953.

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

the  eight-seater  box  and  held  that  even  though  

permission for installation of the box had been granted  

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

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

DCR, 1953 which in no uncertain terms stipulated that

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exits from the auditorium shall be placed suitably along  

both sides and along the back thereof.

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

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

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

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

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

DCR, 1953.   

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

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

to  ensure  rapid  dispersal  in  both  directions  through  

independent stairways leading outside the building. This  

necessarily meant that addition of the left side exit did  

not  amount  to  substantial  compliance  with  the  DCR,  

1953, declared the Court.  

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

side  gangway  were  in  violation  of  the  statutory

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provisions  and  severely  compromised  the  need  for   

quick dispersal in the event of an emergency.

(1) A further development and another dimension to  

the  seating arrangement  in  the  balcony came in  the  

form of a Notification dated 27th July, 1979, from the Lt.  

Governor whereunder the relaxation in the number of  

seats  provided  to  Uphaar  Cinema  under  the  1976  

Notification was withdrawn. The withdrawal, it appears,  

came as a consequence of a judgment delivered by the  

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

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

admission  tickets  to  the  theatre.  The  power  to  fix  

admission rates to the cinema having thus been taken  

away, the Lt. Governor appears to have withdrawn the  

relaxation in the number of additional seats allowed to  

the  cinema owners  under  the  1976  Notification.  This  

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

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

the High Court of Delhi and obtained interim directions

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in their favour.  The High Court directed that such of  

the  additional  seats  as  comply substantially  with  the  

requirements of the Rules may be allowed to stay while  

others  which  infringed  the  Rules  may  have  to  be  

removed. A show-cause notice was accordingly issued  

to  Uphaar  Cinema  asking  it  to  remove  all  the  100  

additional  seats,  which  according  to  the  licensing  

authority were non-compliant with the requirement of  

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

removal  of  these  seats  in  the  reply  filed  by  him as  

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

seats  installed  by  them  were  compliant  with  the  

Cinematograph Rules and requested the authorities to  

apply  their  minds  to  the  direction  of  the  High  Court  

regarding substantial compliance with the Rules.

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

therefore started, pursuant to the direction of the High  

Court and the show-cause notice. This inspection was  

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

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

Officer  and  Executive  Engineer,  all  of  whom  had  

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

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

balcony  were  substantially  compliant  with  the  Rules  

while 6 additional seats on the right side of the balcony  

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

the First Schedule to DCR, 1953 as they were blocking  

vertical  gangways  and  causing  obstruction  to  free  

egress of patrons from the balcony. The said 6 seats  

were,  therefore,  required  to  be  removed  and  the  

original  number  of  vertical  gangways  restored.   The  

result was that 37 additional seats were allowed out of  

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

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

Amod Kanth, DCP (L).  

(3) In his letter dated 29th July, 1980, Gopal Ansal (A-

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

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

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

letter  dated 20th August,  1980 (Ex. PW29/DS) to the  

Executive Engineer,  requesting him to verify whether  

the proposed installation of 15 seats would be compliant  

with the relevant provisions of the DCR, 1953 and to  

submit  a  detailed  report  regarding  the  same.  In  his  

reply dated 3rd September, 1980, Executive Engineer,  

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

installation  of  seats  was  not  in  accordance  with  the  

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

submitted  a  revised  plan  for  the  proposed  additional  

seats  vide  letter  dated  5th September,  1980  (Ex.  

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

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

additional 15 seats would be in conformity with DCR,  

1953, but raised a concern that the installation of the  

15  additional  seats  would  bring  the  total  number  of  

seats in the balcony to 302 while the total number of  

exits  would  remain  3  in  number.  As  per  the  First

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

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

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

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

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

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

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

in  view  the  High  Court's  orders  for  substantial  

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

over the required number of exits should be allowed.  

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

Kanth allowed the installation of the 15 additional seats  

in the balcony on 4th October, 1980. The result was that  

15 additional  seats  were  installed as  per  the  seating  

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

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

Fire  Officer  and  Executive  Engineer  were  equally  

responsible for not noticing the closure of the right side  

exit.

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

also closure of the right side exit because of installation  

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

one vertical gangway, narrowing of another and partial  

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

balcony were all in violation of the statutory provisions  

and  severely  compromised the  safety  of  the  patrons  

visiting  the  cinema.  The  Trial  Court  also  held  that  

because  of  the  alterations  in  the  seating  plan  on  

account of the addition of seats and blocking of the right  

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

an  emergency  was  seriously  jeopardized,  which  

amounted to gross negligence on the part of the owners  

and management of Uphaar Cinema, as well as those  

who were responsible for sanctioning the changes.   

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

ordered  further  investigation  of  the  offence  under  

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

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

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whom the Association of Victims of Uphaar Tragedy had  

filed an application under Section 319 of the CrPC. The  

Trial Court held that the balcony seating plans showed  

that the authorities responsible for the enforcement of  

the  Rules  as  well  as  their  subordinates  who were  to  

carry  out  inspections  were  in  connivance  with  the  

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

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

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

public.

(j) That the owners of  Uphaar Cinema who carried   

out the structural deviations, the officers of the MCD  

who granted 'No Objection’ certificates for running the  

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

respectively despite the structural deviations existing  

in the cinema building and the managers of  Uphaar  

Cinema who turned a blind eye to the said deviations  

and the threat to public safety caused by them, were  

the  direct  cause  of  death  of  59  persons  and  100

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injured in the cinema hall. The act of the gatekeeper   

in fleeing from the cinema hall without unbolting the  

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

the death of persons inside the balcony.

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

after the smoke began to spread inside, the Trial Court  

relied  upon  the  depositions  of  patrons  seated  in  the  

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

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

tragedy some of their relatives who accompanied them  

to  the  movie.  The  Trial  Court  also  relied  upon  the  

depositions of relatives of deceased patrons from the  

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

were not among those in the cinema hall themselves  

but who had rushed to the scene upon learning about  

the disaster. The deposition of the complainant Security  

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

and helped in rescue operations was also relied upon.

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Relying  upon  the  above  evidence,  the  Trial  Court  

arrived at the following conclusions:

(i) Since the patrons were trapped inside the balcony  

which was engulfed by the smoke, those who  

succumbed died due to inhalation of smoke.

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

save  themselves  in  time  since  there  were  no  

proper means of escape.

(iii) Though four exits were statutorily required in the  

balcony, only three were provided.

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

balcony  by  the  owners  of  Uphaar  Cinema  in  

contravention  of  legal  provisions  became  a  

hindrance to egress into the open air for patrons  

in  the  balcony,  as  a  result  of  which  the  said  

patrons could not save themselves in time.

(v) Three  exit  doors  were  bolted.  After  becoming  

aware of the fire in the building, the gatekeeper,  

Manmohan Uniyal (A-8) fled the scene without

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unbolting the exit doors.

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

had to be pushed open by the trapped patrons  

in  order  to  come  out  into  open  space.  This  

endeavour took 10-15 minutes, which resulted  

in a sufficient amount of exposure to the toxic  

gases to cause the death of the persons inhaling  

the same.

(vii) Moreover,  since  descending  the  staircase  would  

only take the patrons into denser smoke, people  

attempted  to  climb  upwards  towards  the  

terrace. However, their path was obstructed due  

to  the  unauthorised  construction  of  the  

commercial office of M/s Sareen Associates on  

the  landing of  the  staircase  on  the  top  floor,  

which  created  a  bottleneck  and  facilitated  in  

causing the death of more patrons. Moreover,  

one of the structural deviations previously noted  

by the  Trial  Court  was the  presence  of  a  full

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width door on the right side of the stair  case  

landing  on  the  top  floor,  which  created  an  

obstruction for going to the terrace.

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

four exhaust fans which were to face an open  

space instead opened out into the staircase.

(ix) As  previously  held,  the  existing  structural  

deviations in the building obstructed the egress  

of patrons into open spaces and thereby directly  

contributed  to  their  deaths.  These  blatant  

structural deviations were never objected to by  

the  MCD,  a  government  body  which  is  

responsible  for  ensuring  compliance  with  

building plans.

(x) The eye-witnesses have unanimously deposed that  

once they realized that smoke was entering the  

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

the  management  of  the  cinema  theatre  was  

there  to  help  them  escape.  Instead,  the

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managers fled the scene without thought for the  

patrons.   

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

nor was any public announcement made to warn  

the patrons of the fire.

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

Madhukar  Bagde  (PW85),  an  announcement  

system was present in the Projector Room but  

the same was out of order. He deposed that he  

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

since deceased, to have the same rectified. This  

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

Rajinder Singh.

(xiii) The  managers  being  directly  responsible  for  the  

daily  functioning  of  the  cinema failed  in  their  

duty to ensure the safety of the patrons seated  

inside.  They  grossly  neglected  their  duties  to  

take measures to prevent fires and follow fire  

safety  regulations,  which caused the  death  of

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patrons trapped inside.

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

management  of  Uphaar  Cinema  to  adhere  to  

provisions  relating  to  fire  safety  caused  the  

death/injury of those who had gone to view the  

film in the cinema.

(xv) The  factors  which  constituted  the  direct  and  

proximate  cause  of  death  of  59  persons  and  

injury of  100 persons in  Uphaar  cinema were  

the  installation  of  the  DVB  transformer  in  

violation  of  law,  faulty  repair  of  the  DVB  

transformer, presence of combustible material in  

the  cinema building,  parking of  cars  near  the  

transformer  room,  alterations  in  the  balcony  

obstructing  egress,  structural  deviations  

resulting  in  closure  of  escape  routes  in  the  

building at the time of the incident, bolting of  

the exit doors from outside and the absence of  

fire fighting measures and two trained firemen,

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during the exhibition of the film in the cinema  

building.

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

asphyxia  caused  by  prolonged  inhalation  of  smoke  

consisting of carbon monoxide and other toxic gases.

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

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

the Trial Court held that all the victims died on account  

of the very same cause as was found to be responsible  

for the demise of Captain Bhinder.  Reliance was also  

placed by the Trial Court upon the reports submitted by  

a Board of Medical Experts from AIIMS which proposed  

that the death of 59 victims of asphyxia was caused due  

to inhalation of smoke consisting of carbon monoxide  

and  other  toxic  gases.  On  the  basis  of  the  expert  

opinion, the Court concluded that the cause of death of  

the persons sitting in the balcony was due to inhalation  

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

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rapid as the fatal period for carbon monoxide with 10%  

concentration  is  within  20-30 minutes  while  the  fatal  

period  of  hydrocyanic  acid  is  2-20  minutes.  The  

combustion of materials released such toxic compounds,  

which in turn caused rapid death of the victims. The  

Court also held that immediate well-organized intensive  

rescue operations could have saved many lives.

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

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

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

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

sentenced  each  one  of  them  to  undergo  rigorous  

imprisonment  for  a  period  of  two  years  with  a  fine  of  

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

also convicted under Section 14 of the Cinematograph Act,  

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

two months imprisonment in default. All the sentences were  

directed  to  run  concurrently.  The  Trial  Court  further  

convicted S.S. Sharma (A-13) and N.D. Tiwari (A-14) who

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were officials of the Municipal Corporation of Delhi apart from  

H.S.  Panwar  (A-15),  Divisional  Officer,  Delhi  Fire  Service  

under the above provisions and sentenced them similarly to  

undergo  two  years  rigorous  imprisonment  and  a  fine  of  

Rs.5,000/-  besides  default  sentence  of  six  months  

imprisonment. In addition, the Trial Court found the charges  

framed against the Managers of GPT, namely, R.K. Sharma  

(A-5),  N.S.  Chopra  (A-6)  and  Assistant  Manager  Ajit  

Choudhary (A-7) as well as gatekeeper Manmohan Uniyal (A-

8) under Section 304 read with Section 36 IPC proved and  

sentenced  them  to  undergo  rigorous  imprisonment  for  a  

period of seven years with a fine of Rs.5,000/- and a default  

sentence of six months.  

29. B.M. Satija (A-9) and A.K. Gera (A-10) who happened  

to be DVB Inspectors at the relevant point of time and Bir  

Singh (A-11) who happened to be DVB Senior Fitter were  

similarly convicted under Section 304 read with Section 36  

IPC  and  sentenced  to  undergo  seven  years  rigorous  

imprisonment  besides  a  fine  of  Rs.5,000/-  and  a  default

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sentence of six months imprisonment.  Proceedings against  

R.M.  Puri  (A-3),  Director  of  GPT  and  K.L.  Malhotra  (A-4)  

Deputy  General  Manager,  S.N.  Dandona  (A-12)  Executive  

Engineer,  PWD and  Surender  Dutt  (A-16)  Station  Officer,  

Delhi Fire Service, all of whom died during the pendency of  

the trial, were held to have abated. Not only that, the Trial  

Court  directed  further  investigation  into  the  matter  under  

Section 173(8) Cr.P.C. in regard to other persons including  

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

temporary  permits  and  for  not  demanding  the  detailed  

inspection reports before issuing such permits.

Findings of the High Court:

30. Aggrieved by the judgment and order passed against  

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

preferred  appeals  before  the  Delhi  High  Court.  The  

Association of Victims of Uphaar Tragedy also filed a revision  

petition  challenging  the  judgment  and  order  of  the  Trial  

Court to the extent the same convicted the accused persons  

only for offences punishable under Section 304A IPC instead

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

beginning  of  this  order,  disposed  of  the  aforementioned  

appeal by a common judgment dated 19th December, 2008  

whereby the High Court affirmed the findings of fact recorded  

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

said findings for the sake of clarity.

I Re:  Ownership,  Management  and  Control  of  

Uphaar Cinema:

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

the ownership, management and control of Uphaar Cinema  

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

times.

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

the findings recorded by the Trial Court and held that Ansal  

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

decisions in regard to management and affairs of the Uphaar  

Cinema such as:

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(a) The  decision  regarding  installation  of  DVB  

transformer within the cinema premises.

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

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

and DCR, 1981.  

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

installation of eight-seater family box.

(d) The  decision  regarding  placement  of  additional  

seats in the balcony.

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

(f) The  exercise  of  unlimited  financial  powers  on  

behalf  of  the  company  and  the  power  to  create  

encumbrances and charges over its assets.   

(g) The  decision  relating  to  commercial  use  of  the  

building.

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

company.

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

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

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

functioning even after they ceased to be so.

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

letter  dated 6th March,  1997 had presented R.M. Puri  and  

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

of the company for operating the cinema and for dealing with  

the  licensing  authority  did  not  mean  that  a  specific  

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

of  DCR,  1953  or  the  corresponding  provision  under  DCR,  

1981.  The High Court held that the shareholding pattern of  

the  company  revealed  that  the  major/predominant  

shareholding continued to remain with the Ansal family and  

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

of the 5000 shares issued by the company.

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

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

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

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though they had attended certain  meetings of  the  Board,  

they were completely unaware of the vital aspects including  

the  fact  that  Uphaar  Cinema  was  being  run  by  Ansal  

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

fact  Directors  or  empowered  to  act  on  behalf  of  the  

company.

II Re: DVB Transformer:

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

transformer had been installed against the provision of the  

Electricity Rules.

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

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

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

space for the DVB transformer.

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

Court affirmed the findings recorded by the Trial Court that  

the DVB transformer was in poor maintenance on the date of  

the incident on account of the following:

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(A) Protection relays which could have tripped off the  

DVB transformer were missing.

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

clamping system or support to the cables.

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

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

transformer.

31. The High Court comprehensively dealt with the cause of  

fire and affirmed the findings recorded by the Trial Court that  

the fire had started from the DVB transformer on account of  

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

crimping machine  because  of  which the  LT  cable  had got  

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

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

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

in paras 7.124 and 7.125 of its judgment.       

32. The High Court held that the correspondence relating to  

the installation of the DVB transformer did not suggest any

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

part  of  the  DVB.  On  the  contrary,  the  correspondence  

revealed an anxiety on the part of cinema management to  

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

judgment that the Uphaar establishment was a beneficiary of  

the DVB transformer since some parts of the building which  

were let out to tenants of the establishment were receiving  

electricity supply from the said transformer.   

III Re: Car Parking:

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

the findings recorded by the Trial Court that the parking of  

extra cars and the parking of cars close to the transformer  

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

be kept free for the movement of vehicles, aggravated the  

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

the  owners  and  the  management  of  Uphaar  Cinema  had  

blatantly  disregarded  the  requirements  of  law  and  the  

sanctioned plan thereby putting the lives of its patrons at  

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

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

contractor the legal and safety requirement of maintaining a  

safe distance between the vehicles and the transformer room  

while entering into a parking contract in the year 1988 nor  

was the parking arrangement subject to any kind of check.  

The  outsourcing of  the  car  parking did not,  observed the  

High Court, absolve the cinema management which was the  

occupier and owner of the premises of their duty to ensure  

that  vehicles  parked  immediately  below  the  viewing  area  

were maintained keeping all safety standards in mind.

IV Re: Structural Deviations:

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

affirmed the findings recorded by the Trial Court that several  

structural deviations apart from violation in the balcony had  

been committed by the management of the cinema hall.  The  

High Court held that construction of refreshment counters on  

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

patrons which was crucial in the event of an emergency and  

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

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

Section 14 of the Cinematograph Act and the licence issued  

thereunder.  Similarly, the exhaust fans were so placed that  

they opened into the hall of the front staircase instead of  

opening  into  an  open  space.  The  structural  deviations,  

according to the High Court, assumed an incrementally risky  

character which the cinema occupier was aware of. Similarly,  

the other violations referred to by the High Court including  

the storage and use of combustible materials and closing of  

one of the exits, besides shifting of the gangway contributed  

to violations that prevented quick dispersal of the patrons  

from the balcony area thereby culminating in the tragedy.  

V Re: Seating arrangement in the balcony:

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

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

left side of the balcony that prevented quick dispersal of the  

patrons,  providing  gangways  which  were  less  than  the

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required width and fixing of seats obstructing the left side  

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

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

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

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

DCR,  1953 which  required  that  at  least  two stairways be  

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

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

effect of substantially increasing the risk to a point where an  

emergency  requiring  rapid  egress  from  the  balcony  area  

could not have been effectively handled to save human lives.  

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

Court on the following aspect and held that –

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

many were unable to leave the place swiftly.

(ii) Several  eye  witnesses  had deposed that  the  balcony  

doors were bolted.

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

forced open.

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

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

without unbolting the doors.

(v) Absence  of  emergency  lighting  arrangements  and  

absence of help at the critical juncture exposed the  

patrons to thick dense smoke for a long period that  

hindered their movement and finally claimed many  

lives.

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

emergency lights.

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

monoxide poisoning.

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

balcony  were  trapped  and  had  to  break  the  open  

windows to flee.

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(ix)  Eye witness accounts established the presence of fire  

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

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

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

persons from the balcony.

37. The  High  Court  on  the  above  findings  upheld  the  

conviction of Sushil Ansal (A-1) and Gopal Ansal (A-2).  It  

also upheld the conviction of H.S. Panwar (A-15) for offences  

punishable  under  Sections  304A,  337  and  338  read  with  

Section 36 of the IPC but reduced the sentence awarded to  

them under Section 304A to one year rigorous imprisonment  

without interfering with the fine imposed by the Trial Court.  

The High Court also reduced the sentence awarded to the  

aforementioned three appellants under Section 337 to three  

months rigorous imprisonment and under Section 338 to one  

year  rigorous  imprisonment  with  the  direction  that  the  

sentences  shall  run  concurrently  including  the  sentence  

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

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the Cinematograph Act for which too the said two accused  

persons were convicted.   

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

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

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

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

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

awarded  to  them  was  accordingly  reduced  to  two  years  

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

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

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

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

with a default sentence of four months. The sentences were  

directed to run concurrently.  

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

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

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

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

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and the revision petition filed by Association of Victims of  

Uphaar Tragedy dismissed.  

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

and sentenced to undergo imprisonment by the High Court,  

except for the convicted gatekeeper, Manmohan Uniyal (A-8)  

who has served out the sentence awarded to him by the  

Courts  below.  We  also  have  before  us  Criminal  Appeals  

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

recorded by the High Court  in favour of  the four  persons  

mentioned  above.  The  Association  of  Victims  of  Uphaar  

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

in which they have challenged the order of acquittal recorded  

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

persons for the offence punishable under Section 304 Part II  

IPC.      

41. We  have  heard  learned  counsel  for  the  parties  at  

considerable  length,  who  were  at  pains  to  refer  to  the  

evidence  adduced  at  the  trial  to  buttress  their  respective

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submissions.  Broadly stated the following questions arise for  

our determination:

(I) Whether the concurrent findings of fact recorded by  

the Courts below prove the commission of any rash  

and/or negligent act by the accused persons or any  

one of them within the meaning of Section 304A of  

the IPC?     

(II) Was  the  High  Court  justified  in  acquitting  the  

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

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

respondent in Criminal Appeal No.605-616 of 2010  

filed by the CBI?

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

one  of  them  was  guilty  of  an  offence  of  culpable  

homicide  not  amounting  to  murder  punishable  under  

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

the accused persons for the said offence?

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

the High Court deserves to be enhanced?

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

issued in the matter having regard to the nature of the  

incident?

42. We  propose  to  deal  with  the  above  questions  ad  

seriatim.

Re: Question No.I:

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

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

ensure clarity and avoid any possible confusion or repetition:

(i)Scope of a criminal appeal by special leave

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

(iii) What constitutes negligence?

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(iv) Difference between Negligence in civil actions  and that in criminal cases.

(v) The doctrine of causa causans.

(vi) Whether  Ansal  brothers  were  occupiers  of   Uphaar Cinema building?

(vii) Degree  and nature  of  care  expected  of  an  occupier of a cinema building.

(viii) Whether  the accused were negligent  and if   so, whether the negligence was gross?

(ix) Contentions  urged  in  defence  and  the   findings thereon.

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

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

before  this  Court  has  been  examined  in  several  

pronouncements of this Court over the past few decades. It  

is unnecessary to burden this judgment by referring to all  

those pronouncements, for a reference to only some of those  

decisions should suffice.  Among them the scope of an appeal  

by special leave in a criminal matter was considered by a  

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

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

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governing interference by this Court in criminal appeals by  

special leave summarized in the following words:

“8.  Thus  the  principles  governing  interference  by   this Court in a criminal appeal by special leave may   be summarised as follows:

(1)  that  this  Court  would  not  interfere  with   the concurrent finding of fact based  on  pure  appreciation of evidence even if it were to take   a different view on the evidence; (2) that the Court will not normally enter into a   reappraisement  or  review  of  the  evidence,   unless  the  assessment  of  the  High  Court  is   vitiated by an error of law or procedure or is   based  on  error  of  record,  misreading  of   evidence or is  inconsistent  with  the evidence,   for  instance,  where  the  ocular  evidence  is   totally  inconsistent  with  the  medical  evidence   and so on;

(3)  that  the  Court  would  not  enter  into   credibility  of  the  evidence  with  a  view  to   substitute its own opinion for that of the High   Court;

(4)  that  the  Court  would  interfere  where  the   High  Court  has  arrived  at  a  finding  of fact in  disregard  of  a  judicial  process,  principles  of   natural justice or a fair hearing or has acted in   violation  of  a  mandatory  provision  of  law  or   procedure  resulting  in  serious  prejudice  or   injustice to the accused;

(5) this Court might also interfere where on the   proved facts wrong inferences of law have been  drawn  or  where  the  conclusions  of  the  High  Court are manifestly perverse and based on no  evidence: It is very difficult to lay down a rule   of  universal  application  but  the  principles   mentioned above and those adumbrated in the   authorities  of  this  Court  cited  supra  provide   sufficient  guidelines  for  this  Court  to  decide  

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criminal  appeals  by  special  leave.  Thus  in  a   criminal appeal by special  leave, this Court at   the  hearing  examines  the  evidence  and  the   judgment  of  the  High  Court  with  the  limited   purpose of determining whether or not the High   Court  has  followed  the  principles  enunciated   above.  Where  the  Court  finds  that  the  High  Court has committed no violation of the various   principles laid down by this Court and has made   a  correct  approach  and  has  not  ignored  or   overlooked  striking  features  in  the  evidence  which  demolish  the  prosecution  case,  the   findings of fact arrived at by the High Court on  an  appreciation  of  the  evidence  in  the   circumstances  of  the  case  would  not  be   disturbed.”

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

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

will not normally enter into reappraisal or review of evidence  

in an appeal under Article 136 of the Constitution unless the  

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

error of law or procedure and the conclusions arrived at are  

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

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

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

of  appeal  under  Article  136  of  the  Constitution  was  very  

limited  and  that  this  Court  does  not  exercise  overriding  

powers under the said provision to reweigh the evidence and

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disturb the concurrent findings of fact reached upon proper  

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

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

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

embark upon a re-appreciation of the evidence when both  

the Sessions Court and the High Court had agreed in their  

appreciation  of  the  evidence  and  arrived  at  concurrent  

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

bear  in  mind the  limited  scope  of  the  proceedings  under  

Article 136 of the Constitution which cannot be converted  

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

enough  to  attract  this  Court’s  invigilatory  jurisdiction.  A  

similar  view  was  expressed  by  this  Court  in  Amitava  

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

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

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

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

of appeal obliged to reappraise the evidence and record its  

conclusion. The jurisdiction to interfere under Article 136 is

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extraordinary  and  the  power  vested  in  this  Court  is  not  

exercised to upset concurrent findings of fact recorded by the  

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

only  in  those  rare  and  exceptional  cases  where  the  

appreciation of evidence is found to be wholly unsatisfactory  

or the conclusion drawn from the same perverse in nature,  

causing miscarriage of justice that this Court may correct the  

course  of  justice  and  undo  the  wrong.  Perversity  in  the  

findings, illegality or irregularity in the trial that results in  

injustice or failure to take into consideration an important  

piece of evidence are some of the situations in which this  

Court may reappraise the evidence adduced at the trial but  

not otherwise. The scope of interference with the findings of  

fact  concurrently  found  by  the  Trial  Court  and  the  First  

Appellate Court is thus permissible as a rarity only in the  

situations enumerated above and not as a matter of course  

or for mere asking.  

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

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

by  a  rash  or  negligent  act  not  amounting  to  culpable  

homicide, punishable with imprisonment of either description  

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

both.  It reads:  

“304A. Causing death by negligence.-- Whoever  causes the death of any person by doing any rash or   negligent  act  not  amounting  to  culpable  homicide   shall  be  punished  with  imprisonment  of  either   description  for  a  term  which  may  extend  to  two   years, or with fine, or with both.”

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

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

Judicial pronouncements have all the same given a meaning  

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

expressions appearing in the provisions. One of the earliest  

of these pronouncements was in Empress of India v. Idu  

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

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

risk of doing an act with recklessness or indifference as to  

consequences.   A  similar  meaning was given to  the  term

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

Negaghushanam 7 Mad HCR 119, where the Court held  

that culpable rashness meant acting with the consciousness  

that a mischievous and illegal consequence may follow, but  

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

arises  out  of  the  person  concerned  acting  despite  the  

consciousness.  These  meanings  given  to  the  expression  

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

evident from a conspectus of decisions delivered from time to  

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

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

Textbook of Jurisprudence” by George Whitecross Paton  

reliance whereupon was placed by Mr. Jethmalani in support  

of  his  submission.  Rashness  according  to  Paton  means  

“where  the  actor  foresees  possible  consequences,  but   

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

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

meaning which implies a gross and culpable neglect or failure  

to exercise that reasonable and proper care and precaution

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

individual which having regard to all the circumstances out of  

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

accused to have adopted.  Negligence has been understood  

to be an omission to do something which a reasonable man  

guided upon those considerations which ordinarily regulate  

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

which a prudent and reasonable person would not do. Unlike  

rashness, where the imputability arises from acting despite  

the  consciousness,  negligence  implies  acting  without  such  

consciousness,  but  in  circumstances  which  show that  the  

actor  has  not  exercised the  caution incumbent  upon him.  

The imputability in the case of negligence arises from the  

neglect of the civil duty of circumspection.   

(iii) What constitutes Negligence?:

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

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

giving what has been widely acknowledged as a reasonably  

acceptable meaning to the term.  We may before referring to

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the  judicial  pronouncements  on  the  subject  refer  to  the  

dictionary meaning of the term ‘negligence’.

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

“The failure to exercise the standard of care that a   reasonably prudent person would have exercised in   a similar situation; any conduct that falls below the   legal standard established to protect others against   unreasonable risk of harm, except for conduct that is   intentionally,  wantonly,  or  willfully  disregardful  of   other’s rights.”

52. Charlesworth  and  Percy  on  Negligence (Twelfth  

Edition)  gives  three  meanings  to  negligence  in  forensic  

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

distinguished in particular  from intention; (ii) in describing  

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

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

three meanings are then explained thus:

“The first  meaning:  Negligence as a state  of  mind   can  be  contrasted  with  intention.   An  act  is   intentional when it is purposeful and done with the   desire or object of producing a particular result.  In   contrast,  negligence  in  the  present  sense  arises   where  someone  either  fails  to  consider  a  risk  of   particular action, or having considered it, fails to give   the risk appropriate weight.

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The second meaning: Negligence can also be used as   a way to characterize conduct, although such a use   may lead to imprecision when considering negligence   as a tort.  Careless conduct does not necessarily give   rise  to  breach  of  a  duty  of  care,  the  defining   characteristic of the tort of negligence.  The extent of   a duty of care and the standard of care required in   performance  of  that  duty  are  both  relevant  in   considering  whether,  on  any  given  facts  conduct   which can be characterized as careless, is actionable   in law.

“The  third  meaning:  The  third  meaning  of   negligence, and the one with  which this  volume is   principally  concerned,  is  conduct  which,  objectively   considered,  amounts  to  breach  of  a  duty  to  take  care”.

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

out the following four separate requirements of the tort of  

negligence:

"(1) the existence in law of a duty of care situation,   i.e.  one  in  which  the  law  attaches  liability  to   carelessness.  There  has  to  be  recognition  by  law  that the careless infliction of the kind of damages in   suit  on the class of  person to which the claimant   belongs  by  the  class  of  person  to  which  the   defendant belongs is actionable;

(2) breach of the duty of care by the defendant, i.e.,   that it failed to measure up to the standard set by   law;

(3)  a  casual  connection  between  the  defendant's   careless conduct and the damage;

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(4)  that  the  particular  kind  of  damage  to  the   particular claimant is not so unforeseeable as to be   too remote."

54. Law  of  Torts  by  Rattanlal  &  Dhirajlal,  explains  

negligence in the following words:

“Negligence is the breach of a duty caused by the   omission to do something which a reasonable man,   guided  by  those  considerations  which  ordinarily   regulate the conduct of human affairs would do, or   doing  something  which  a  prudent  and  reasonable   man would not do.  Actionable negligence consists in   the  neglect  of  the  use  of  ordinary  care  or  skill   towards a person to whom the defendant owes the   duty of observing ordinary care and skill, by which   neglect the plaintiff has suffered injury to his person   or property.  According to Winfield, “negligence as a   tort is the breach of a legal duty to take care which   results  in  damage,  undesired  by the  defendant  to   the  plaintiff”.   The  definition  involves  three   constituents  of  negligence:  (1)  A  legal  duty  to   exercise  due  care  on  the  part  of  the  party   complained  of  towards  the  party  complaining  the   former’s conduct within the scope of the duty; (2)   Breach  of  the  said  duty;  and  (3)  consequential   damage. Cause of action for negligence arises only   when  damage  occurs  for  damage  is  a  necessary   ingredient of this tort.  But as damage may occur   before  it  is  discovered;  it  is  the  occurrence  of   damage which is the starting point of the cause of   action.

55. The  above  was  approved  by  this  Court  in  Jacob  

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

SCC 1.

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

including injury arising out of use of buildings is examined by  

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

Long  Island  Railroad,  248  NY  339,  Justice  Cardozo  

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

under:

“If  no  hazard  was  apparent  to  the  eye  of  ordinary   vigilance,  an act  innocent  and harmless,  at  least  to   outward seeming with reference to her, did not take to  itself the quality of a tort because it happened to be a   wrong, though apparently not one involving the risk of   bodily  insecurity,  with  reference  to someone  else...Even then, the orbit of the danger as disclosed   to the eye of reasonable vigilance would be the orbit   of the duty.”

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

Grayson Rollo  and Clover  Docks Limited and Others  

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

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

does not contain any danger or to inform those coming to  

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

thus:

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“In my opinion the true view is that when a person   invites  another  to  a  place  where  they  both  have   business, the invitation creates a duty on the part of   the  invitor  to take reasonable care that  the  place   does  not  contain  or  to  give  warning  of  hidden   dangers, no matter whether the place belongs to the   invitor or is in his exclusive occupation.”

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

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

“The general duty to use ordinary care and diligence   to put and keep this  theatre in a reasonably safe   condition, having regard to the construction of the   place, character of the entertainment given and the   customary conduct of persons attending.”

59. The  above  case  was  cited  with  approval  in  Helen  

Upham v. Chateau De Ville Theatre Inc 380 Mass 350  

(1980).  

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

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

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

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

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

reasonably foreseeable:

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“We conclude that appellee AMC owed the Mostert   family an affirmative duty to exercise reasonable or   ordinary  care  for  their  safety  which  includes  an   obligation  to  advise  them  of  off-premises  danger   that  might  reasonably  be foreseeable.  We are not   suggesting  by  our  determination  that  AMC  had  a   duty to restrain its patrons or even a duty to advise   them what to do. The duty as we see it is only to   reveal what AMC knew to its customers.”

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

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

theatre owner to be 90% and the contributory negligence of  

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

“The  appellant,  Margaret  Brown,  was  injured  by  falling down a stairway in a theatre in Toronto. After   passing through a brightly lighted lobby, she entered   the foyer, intending to go to the ladies’ room. This   was on the left of the entrance and was indicated by   a short electric sign 7’ high facing her as she turned.   In  the  foyer,  a  narrow  corridor,  the  lights  were   dimmed; and, proceeding along the wall at her left,   she opened what  she took to  be  the  door  to  the   waiting room. A fire extinguisher 2’ long and 4’ from   the floor hung on the wall next to the left side of the   door; and at the right side was a post or panel 7”   wide,  projecting  about  4”  out  from  the  wall;  the   door, 31” wide, swinging toward the left, on which   the word “Private” was printed in faint letters, was   between three and four feet in front of the sign and   led to a stairway into the basement. The platform or  landing was about 24” deep and the door must have   swung somewhat before the edge would be brought   into  view.  Immediately  inside  on  the  wall  at  the   right and on a level with her eyes, was a light which,   on her story, momentarily blinded her. The entrance  

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to the ladies’ room was separated from this door by   the post or panel.”

62. Holding that the theatre owner had breached the duty  

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

held as follows:

“Here,  Mrs.  Brown  paid  a  consideration  for  the   privileges  of  the  theatre,  including that  of  making   use  of  the  ladies’  room.  There  was  a  contractual   relation between her and the theatre management   that  exercising  prudence  herself  she  might  enjoy   those  privileges  without  risk  of  danger  so  far  as  reasonable care could make the premises safe.”

                                      (emphasis supplied)

63. In  Dabwali  Fire  Tragedy  Victims  Association  v.   

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

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

the  High  Court  of  Punjab  &  Haryana  held  that  both  the  

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

school function was held,  were liable as occupiers for  the  

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

by  a  fire  which  broke  out  on  the  premises  during  the  

function. In dealing with the question whether the owners of  

the  premises,  Rajiv  Marriage  Palace,  being  agents  of  the

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school could be  held accountable,  the  High Court  held as  

follows:  

“..The School ought to have known that in a function   which  is  open  to  general  public,  a  Pandal  with  a   capacity of 500 to 600 persons spread over no more   than an area measuring 100’ x 70’, a gathering of   1200 to 1500 persons could result  in  a stampede  and expose to harm everyone participating in  the   function especially the children who were otherwise   incapable of taking care of their safety.  The school   ought to have known that the availability of only one   exit gate from the Marriage Palace and one from the   Pandal would prove insufficient in the event ofany   untoward  incident  taking  place  in  the  course  of   function.  The School ought to have taken care to   restrict  the  number  of  invitees  to  what  could  be  reasonably  accommodated  instead  of  allowing  all   and sundry to attend and in the process increase the   chances of a stampede.  The School ought to have   seen that sufficient circulation space in and around   the seating area was provided so that  the  people   could quickly move out of the place in case the need   so arose.  Suffice it to say that a reasonably prudent   School  Management organizing an annual  function   could and indeed was duty bound to take care and  ensure that no harm came to anyone who attended   the function whether as an invitee or otherwise, by   taking  appropriate  steps  to  provide  for  safety   measures  like  fire  fighting  arrangements,  exit   points, space for circulation, crowd control and the   like.   And  that  obligation  remained  unmitigated   regardless whether the function was held within the   School premises or at another place chosen by the   Management  of  the  School,  because  the  children   continued to be under the care of the School and so  did the obligation of the School to prevent any harm  coming to them.  The principle of proximity creating   an  obligation  for  the  School  qua its  students  and   invitees to the function would make the School liable   for any negligence in either the choice of the venue   of the function or the degree of care that ought to  

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have  been  taken  to  prevent  any  harm coming  to   those who had come to watch and/or participate in   the  event.  Even  the  test  of  foreseeability  of  the   harm must be held to have been satisfied from the   point of view of an ordinary and reasonably prudent   person. That is because a reasonably prudent person  could foresee danger to those attending a function in   a place big enough to accommodate only 500 to 600   people  but  stretched  beyond  its  capacity  to   accommodate double that number.  It could also be   foreseen  that  there  was  hardly  any  space  for   circulation within the Pandal.  In the event of any   mishap, a stampede was inevitable in which women   and children  who were  attending in  large number   would be worst sufferers as indeed they turned out   to  be.  Loose  electric  connections,  crude  lighting   arrangements and an electric load heavier than what   the entire system was geared to take was a recipe   for a human tragedy to occur.  Absence of any fire   extinguishing arrangements within the Pandal and a   single  exit  from the Pandal  hardly enough for the   people to run out in the event of fire could have put   any  prudent  person  handling  such  an  event  to   serious thought about the safety of those attending   the functioning especially the small children who had   been brought to the venue in large numbers…”

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

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

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

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

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

follows:

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“93. In the instant case while the School had the   absolute right to restrict the entry to the venue of   the  function being organized by it  and everything   that  would  make  the  function  go  as  per  its   requirements, the owners had not completely given   up their control over the premises, and were indeed   present at the time the incident occurred. The facts   and circumstances brought on record in the course   of  the  enquiry  establish  that  the  School  and  the   Marriage  Palace  owners  were  both  occupying  the  premises and were, therefore, under an obligation to   take care for the safety of not only the students, but   everyone  who  entered  the  premises  on  their   invitation  or  with  their  permission  specific  or   implied. As to the obligation of an occupier to take   care qua his invitees a long line of English decisions   have settled the legal position...

xx xx xx

97. In the light of the above, we have no hesitation   in holding that the One Man Commission of Inquiry   was perfectly justified in holding the School and the   Marriage Palace liable for the act of tort arising out   of their negligence and duty to take care about the   safety of all those invited to the function at Dabwali.   Question No. 2 is answered accordingly.”

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

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

staying at  a lodging house occupied and managed by the  

Singh  family  died  in  his  sleep  due  to  carbon  monoxide  

poisoning.  The  cause  of  the  carbon  monoxide  was  the  

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

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

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in the room could not escape. While determining whether the  

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

as follows:

“...In substance this is a case where those living in   the room in which Mr. Foster died in a lodging house   managed by Singh family. They were led to believe   that  the  appellant  and his  father  would  take care   that they were not poisoned by equipments provided   by  the  family.  The  appellant  was  possessed  of   sufficient  information  to  make  him  aware  of  a   danger  of  death  from gas.  He  may  not  have  had  sufficient skill to be able to discover how that danger   arose but he was responsible for taking reasonable   steps to deal with that danger if need by calling in   expert help. In those circumstances the judge was   right to hold that  there was a sufficient  proximity   between the lodgers on the one side and the father   and son on the other side to place a duty of care on   the latter.”

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

do something which a reasonably prudent man would under  

the circumstances have done or doing something which when  

judged from reasonably prudent standards should not have  

been done. The essence of negligence whether arising from  

an  act  of  commission  or  omission  lies  in  neglect  of  care  

towards a person to whom the defendant or the accused as  

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

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

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

fundamental  of  ingredients  in  any  civil  or  criminal  action  

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

consequences flowing from the same being the other two.  It  

follows that  in  any  forensic  exercise  aimed at  finding out  

whether  there  was   any  negligence  on  the  part  of  the  

defendant/accused,  the  Courts  will  have  to  address  the  

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

(iv) Difference between negligence in civil actions and  

in criminal cases:

67. Conceptually  the  basis  for  negligence  in  civil  law  is  

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

negligence required to be proved in a criminal action than  

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

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

culpable in criminal law, the degree of such negligence must  

be  higher  than  what  is  sufficient  to  prove  a  case  of  

negligence  in  a  civil  action.  Judicial  pronouncements  have

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repeatedly declared that in order to constitute an offence,  

negligence must be gross in nature.  That proposition was  

argued by Mr. Ram Jethmalani at great length relying upon  

English decisions apart from those from this Court and the  

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

appearing  for  the  CBI  and  Mr.  Tulsi  appearing  for  the  

Association  of  Victims,  we  must  mention  that  the  legal  

proposition propounded by Mr. Jethmalani was not disputed  

and in our opinion rightly so. That negligence can constitute  

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

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

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

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

trace the development of law on the subject, except making  

a  brief  reference  to  a  few  notable  decisions  which  were  

referred to at the bar.

68. One  of  the  earliest  decisions  which  examined  the  

question  of  criminal  negligence  in  England  was  R.  v.  

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

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prosecuted  for  negligence  resulting  in  the  death  of  his  

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

in such cases in the following words:

“A  doctor  is  not  criminally  responsible  for  a   patient's  death  unless  his  negligence  or   incompetence  passed  beyond  a  mere  matter  of   compensation  and  showed  such  disregard  for  life   and  safety  as  to  amount  to  a  crime  against  the   State.”

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

Akerele  v.  The  King  AIR  1943  PC  72 found  itself  

confronted by a similar question arising out of the alleged  

medical negligence by a doctor who was treating patients for  

an  endemic  disease  known as  “Yaws“  which  attacks  both  

adults  and  children  causing  lesions  on  the  body  of  the  

patient.  Following  the  treatment,  10  children  whom  the  

accused  had  treated  died  allegedly  because  the  injection  

given  to  the  patients  was  too  strong  resulting  in  an  

exceptional  reaction  among  the  victims.   The  allegation  

against the doctor was that he had negligently prepared too  

strong a mixture and thereby was guilty of manslaughter on

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account of criminal negligence.  Relying upon Lord Hewart’s  

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

“11. Both statements are true and perhaps cannot   safely  be  made  more  definite,  but  it  must  be  remembered that the degree of negligence required   is that it should be gross, and that neither a jury nor   a Court can transform negligence of a lesser degree  into  gross  negligence  merely  by  giving  it  that   appellation. The further words spoken by the Lord   Chief  Justice  in  the  same  case  are,  in  their   Lordships'  opinion,  at  least  as  important  as  those   which have been set out:

It  is  desirable  that,  as  far  as  possible,  the   explanation of criminal negligence to a jury should   not be a mere question of epithets. It is, in a sense,   a question of degree, and it is for the jury to draw  the line, but there is a difference in kind between   the negligence which gives a right to compensation   and the negligence which is a crime.”

70. What  is  important  is  that  the  Privy  Council  clearly  

recognized  the  difficulty  besetting  any  attempt  to  define  

culpable  or  criminal  negligence  and  held  that  it  was  not  

possible  to  make  the  distinction  between  actionable  and  

criminal  negligence  intelligible,  except  by  means  of  

illustrations drawn from actual judicial opinions.  On the facts  

of that case the Privy Council accepted the view that merely  

because  a  number  of  persons  had  taken  gravely  ill  after

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receiving an injection from the accused, a criminal degree of  

negligence was not proved.

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

of  this  Court  was  examining  a  case  of  criminal  medical  

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

reviewed the decisions on the subject including the decision  

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

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

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

extracted:

“48. We sum up our conclusions as under:

xxx xxx xxx  

(5) The jurisprudential concept of negligence differs   in civil and criminal law. What may be negligence in   civil  law  may  not  necessarily  be  negligence  in   criminal  law.  For  negligence  to  amount  to  an   offence, the element of mens rea must be shown to  exist. For an act to amount to criminal negligence,   the degree of negligence should be much higher i.e.   gross or of a very high degree. Negligence which is   neither gross nor of a higher degree may provide a   ground for action in civil  law but cannot form the   basis for prosecution.

(6)  The  word  “gross”  has  not  been  used  in   Section 304-A IPC, yet it is settled that in criminal   law negligence or recklessness, to be so held, must   be  of  such  a  high  degree  as  to  be  “gross”.  The  

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expression  “rash  or negligent  act”  as  occurring  in   Section 304-A IPC has to be read as qualified by the   word “grossly”.”

72. The  legal  position  in  England  remains  the  same  as  

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

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

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

in cases involving manslaughter by criminal negligence were  

summed up in the following words:

“...In  my  opinion  the  law  as  stated  in  these  two   authorities is satisfactory as providing a proper basis   for  describing  the  crime  of  involuntary   manslaughter.  Since  the  decision  in  Andrews  v.  DPP (1937) 2 All ER 552,  was a decision of your  Lordships' House, it remains the most authoritative   statement of the present law which I have been able   to  find  and  although  its  relationship  to  R.  v.  Seymour (1983) 2 ALL ER 1058  is a matter to  which I shall have to return, it is a decision which   has not been departed from.  On this basis in my  opinion  the  ordinary  principles  of  the  law  of   negligence  apply  to  ascertain  whether  or  not  the   defendant  has  been  in  breach  of  a  duty  of  care   towards the victim who has died. If such breach of   duty is established the next question is whether that   breach of duty caused the death of the victim. If so,   the jury must go on to consider whether that breach   of duty should be characterised as gross negligence   and therefore as a crime. This will  depend on the   seriousness of the breach of duty committed by the   defendant  in  all  the  circumstances  in  which  the   defendant was placed when it occurred. The jury will   have to consider whether the extent  to which the  

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defendant's  conduct  departed  from  the  proper  standard of care incumbent upon him, involving as it   must have done a risk of death to the patient, was   such that it should be judged criminal.  

It is true that to a certain extent this involves   an element of circularity, but in this branch of the   law I do not believe that is fatal to its being correct   as  a  test  of  how  far  conduct  must  depart  from  accepted standards to be characterised as criminal.   This  is  necessarily  a  question  of  degree  and  an   attempt  to  specify  that  degree  more  closely  is  I   think likely to achieve only a spurious precision. The   essence of  the  matter,  which  is  supremely  a jury   question,  is  whether,  having regard to the  risk of   death involved, the conduct of the defendant was so   bad in all the circumstances as to amount in their   judgment to a criminal act or omission...”

73. There  is  no  gainsaying  that  negligence  in  order  to  

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

damages is different from negligence which the prosecution  

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

‘involuntary manslaughter’ in England, analogous to what is  

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

case it is imperative for the prosecution to establish that the  

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

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

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

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

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certitude. Decided cases alone can illustrate what has been  

considered to be gross negligence in a given situation.   

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

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

Court had an occasion to examine whether the negligence  

alleged against the accused was gross, so as to constitute  

an offence under Section 304A of the IPC.  

(V) Doctrine of Causa Causans:

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

not,  more  important  dimension of  the  offence  punishable  

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

must be the proximate, immediate or efficient cause of the  

death of the victim without the intervention of any other  

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

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

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

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

Rampratap (1902) 4 Bom LR 679  where Sir Lawrence

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Jenkins speaking for the Court summed up the legal position  

in the following words:

“…to impose criminal liability under Section 304-A,   Indian  Penal  Code,  it  is  necessary  that  the  act   should  have  been  the  direct  result  of  a  rash  and   negligent act of the accused and that act must be   proximate  and  efficient  cause  without  the   intervention  of  another  negligence.   It  must  have   been the causa causans; it is not enough that it may   have been the causa sine qua non.”

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

in Kurban Hussein Mohamedalli Rangawalla v. State of   

Maharashtra AIR 1965 SC 1616. We shall  refer  to  the  

facts  of  this  case  a  little  later  especially  because  Mr.  

Jethmalani, learned Counsel for the appellant-Sushil Ansal,  

placed heavy reliance upon the view this Court has taken in  

the fact situation of that case.   

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

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

correctness  of  the  proposition  that  criminal  liability  under  

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

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

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

proximate  and  efficient  cause  without  the  intervention  of  

another person’s negligence. A subsequent decision of this  

Court  in  Suleman  Rahiman  Mulani  v.  State  of   

Maharashtra AIR 1968 SC 829 has once again approved  

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

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

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

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

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

Rustom Sherior  Irani  v.  State  of  Maharashtra  1969  

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

Maharashtra AIR 1968 SC 1319; Kishan Chand v. State  

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

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

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

(supra).  

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

proved it is not only necessary to establish that the accused

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was  either  rash  or  grossly  negligent  but  also  that  such  

rashness  or  gross negligence was the  causa causans that  

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

causa  causans we  may  gainfully  refer  to  Black’s  Law  

Dictionary (Fifth Edition) which defines that expression as  

under:

“The immediate cause; the last link in the chain of   causation.”

80. The  Advance  Law  Lexicon edited  by  Justice  

Chandrachud,  former  Chief  Justice  of  India defines  Causa  

Causans as follows:

”the  immediate  cause  as  opposed  to  a  remote   cause; the ‘last link in the chain of causation’; the   real effective cause of damage”  

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

edition of Black’s Law Dictionary as under:   

“That which in a natural  and continuous sequence   unbroken  by  any  efficient,  intervening  cause,   produces injury and without which the result would   not have occurred.  Wisniewski vs. Great Atlantic &   Pac.  Tea  Company  226  Pa.  Super  574,  323  A2d,   744,  748.  That  which  is  nearest  in  the  order  of  

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responsible  causation.   That  which  stands  next  in   causation to the  effect,  not necessarily  in  time or   space but in causal relation. The proximate cause of   an injury  is  the primary or moving cause,  or that   which  in  a  natural  and  continuous  sequence,   unbroken  by  any  efficient  intervening  cause,   produces the injury and without which the accident   could not have happened, if the injury be one which   might  be  reasonably  anticipated  or  foreseen  as  a   natural consequence of the wrongful act. An injury   or damage is  proximately  caused by an  act,  or a   failure  to  act,  whenever  it  appears  from  the   evidence in the case, that the act or omission played   a  substantial  part  in  bringing  about  or  actually   causing the injury or damage; and that the injury or   damage was either a direct result or a reasonably   probable consequence of the act or omission.”

(vi) Whether Ansal brothers were occupiers of Uphaar  

cinema building:

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

buildings and structures permanent or temporary, the duty  

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

of  such  buildings  or  structures.  Since  the  charge  in  the  

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

question  whether  the  appellants  Sushil  and  Gopal  Ansal,  

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

care upon them towards the patrons who came to watch the  

exhibition of cinematographs needs to be addressed.  

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

senior  advocate,  in  his  inimitable  style  and  remarkable  

forensic skill argued that his client Sushil Ansal was not the  

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

care towards those who came to watch the movie on the  

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

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

Sushil Kumar appearing for Gopal Ansal, adopted a similar  

line  of  argument  and  urged  that  even  Gopal  Ansal  had  

nothing to  do with the  cinema or  the  management  of  its  

affairs  as  on  the  date  of  the  unfortunate  fire  incident.  

Reliance in support of that submission was placed both by  

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

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

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

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

Reliance was also placed upon the fact that Sushil Ansal was  

the  Managing  Director  of  the  Company  only  till  21st  

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

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17th October, 1988, thereby putting an end to his association  

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

over  as  Managing  Director  of  the  Company  on  21st  

November, 1983 had retired from the Board of Directors on  

17th October, 1988, whereafter he exercised no control over  

the  Cinema  or  its  management  to  earn  him  what  is  

retrospect is a dubious distinction of being the “occupier of  

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

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

but was concerned only with the business of the Clubs being  

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

counsel, that neither Sushil nor Gopal Ansal was the occupier  

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

any civil or criminal liability against them.

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

question whether the Ansal Brothers were occupiers of the  

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

impression  that  an  occupier  must  be  the  owner  of  the  

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

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

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

necessarily be the owner of the premises in question.  What  

is  important  is  whether  the  premises  in  question  was  

sufficiently  and  not  exclusively  under  the  control  of  

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

of the premises is not a condition precedent.  An occupier  

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

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

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

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

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

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

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

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

Denning applied the test of sufficient degree of control and  

not  exclusive  or  entire  control  to  determine  whether  the  

person concerned was an occupier. The following passage is  

apposite in this regard:

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“It was simply a convenient word to denote a person   who had a sufficient degree of control over premises   to put him under a duty of care towards those who   came lawfully on to the premises. In order to be an   'occupier' it  is not necessary for a person to have   entire control over the premises. He need not have   exclusive  occupation.  Suffice  it  that  he  has  some  degree  of  control.  He may share  the  control  with   others.  Two  or  more  may  be  occupiers.  And  whenever this happens, each is under a duty to use   care  towards  persons  coming  lawfully  on  to  the   premises,  dependent  on  his  degree  of  control.  If   each fails in his duty, each is liable to a visitor who   is injured in consequence of his failure but each may   have a claim to contribution from the other.”

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

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

Court made the following observations:

“Any person was an occupier for the purposes of fire   if  he  had  a  sufficient degree  of  control  over  the  premises  and  could  say  with  authority  to  anyone  who came there, “Do or do not light a fire,” or “Put   out  that  fire”.  If  he  could,  he  was  liable  for   negligence  on  the  part  of  any  person  who  came  there.”

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

because the company was the legal owner of the Cinema  

premises,  did  not  mean  that  the  Company and  Company  

alone was the occupier thereof.  The question whether the  

Ansal Brothers (Sushil and Gopal) exercised any control over

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

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

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

Courts  below.  We  have  in  the  preceding  part  of  this  

judgment  referred to the findings of  fact  recorded by the  

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

completeness, we may refer to those findings in some detail  

at this stage over again.   

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

concurrently held that Sushil and Gopal Ansal were,  at all  

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

owned Uphaar cinema.  All crucial decisions relating to the  

cinema  including  decisions  regarding  installation  of  DVB  

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

gangway  and  rearrangement  of  the  seating  plan  in  the  

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

was either a Director or Managing Director of the company.  

Both  the  Courts  have  further  found  that  Ansal  brother’s  

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

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look after the cinema management continued even upto the  

date  of  the  incident.  In  particular  the  Courts  below have  

concurrently  held  that  the  decision  to  install  the  DVB  

transformer and to let out various parts of the premises for  

commercial  use  in  violation  of  the  sanctioned  plan  were  

taken by Sushil Ansal as Managing Director of the  company.  

Applications for grant of the cinema license and subsequent  

renewals  were  found  to  have  been  made  by  him as  the  

representative licensee on behalf of the company even after  

his purported retirement from the Board of Directors.  Not  

only  that,  the  Courts  below  have  concurrently  held  that  

Sushil Ansal was exercising a high degree of financial control  

over the affairs of the company and the cinema owned by  

him.  Gopal  Ansal  was  similarly  exercising  an  equally  

extensive  degree  of  financial  control  even  after  his  

retirement  as Director.  The  Courts  below have also found  

that all decisions relating to changes in the balcony seating  

arrangement and installation of additional seats were taken  

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

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request.  The Courts have noticed and relied upon the Show  

Cause Notice dated 28th May, 1982 in which Gopal Ansal, the  

Managing  Director,  was  cautioned  about  the  dangerous  

practice being followed by the cinema management of bolting  

the  doors  of  the  cinema hall  during  the  exhibition of  the  

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

be  discontinued  was  given  by  Gopal  Ansal  as  Managing  

Director of the company.   

88. In  conclusion  the  High  Court  has  outlined  eight  

decisions  which  were  directly  attributable  to  the  Ansal  

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

and  commercial  use  of  the  cinema  premises  as  also  the  

seating  arrangement  in  the  balcony  and  in  no  uncertain  

terms rejected the argument that Ansal brothers had nothing  

to  do  with  the  company  and  the  cinema  after  their  

retirement from the Board of Directors in 1988.  All these  

findings  are,  in  our  opinion,  supported  by  overwhelming  

evidence on record which satisfactorily proves not only that  

Ansal  brothers  continued  to  exercise  all  pervasive  control

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over the affairs of the cinema but also because the cinema  

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

representative license of the Uphaar Cinema.  Our attention  

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

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

acknowledged that he was the occupier of the cinema.  The  

relevant portion of the affidavit reads as under:

“I, Sushil Ansal, s/o Late Shri Charanji Lal, R/o   N-148,  Panchshila  Park,  New  Delhi,  Chairman  of   Green Park Theatres Associated (P) Ltd., 115 Ansal   Bhawan,  16  Kastuba  Gandhi  Marg,  New  Delhi  –   110001, am applying for renewal of License for the   year  1992-93.  I  have  not  without  permission,   transferred the License or the Licensed place or the   Cinematographs  to  any  person  during  the  year   1991-92 to exhibit films in the Licensed place.  I am  still the occupier of the licensed premises and owner   of the Cinematograph.”

    (emphasis  supplied)

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

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

company  was  ever  owned  by  anyone  outside  the  Ansal  

family.  The  Courts  have  also  placed  reliance  upon  the  

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

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

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

were Directors or had financial powers on the date of the  

incident  were  completely  unaware  of  the  affairs  of  the  

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

long way to prove that the cinema was being managed by  

Ansal  brothers  who had a  complete  sway over  its  affairs.  

What  is  worse is that  some of these  witnesses expressed  

their  ignorance  about  whether  they  were  Directors  or  

whether  they had financial powers within the  company or  

that the company was still involved in cinema business.   

90. The  cumulative  effect  of  the  above  facts  and  

circumstances proved by cogent evidence placed on record  

by  the  prosecution,  in  our  view,  fully  supports  the  

prosecution case that  Sushil  and Gopal  Ansal  were  in  full  

control  over  the  affairs  of  the  company which owned the  

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

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

hesitation in affirming the finding that the Ansal brothers -

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Sushil and Gopal were both occupiers of the cinema complex  

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

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

the premises.

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

any having been committed by the company, officers of the  

company  could  not  be  vicariously  held  guilty  of  criminal  

negligence.   Reliance,  in  support  of  that  submission  was  

placed by Mr. Jethmalani upon the provisions of Section 141  

of the Negotiable Instruments Act and the decisions of the  

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

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

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

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

rendering the officers of the company vicariously liable for  

prosecution  for  the  offences  committed  by  the  company,  

there was no question of the appellant Ansal brothers being  

held guilty that too for an offence committed long after they  

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

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our inability to accept that submission.  We say so because  

the  appellants  have  not  been  prosecuted  as  officers  of  a  

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

of the prosecution that the appellants are vicariously liable as  

in  the  case  of  those  falling  under  Section  141  of  the  

Negotiable Instruments Act.   The prosecution case on the  

other hand is that in their capacity as occupiers the appellant  

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

patrons  which  duty  they  grossly  neglected.   The  entire  

substratum  of  the  case  is,  therefore,  different  from  the  

assumption on which Mr. Jethmalani has built his argument.  

The assumption being misplaced, the argument can be no  

different.  

(vii)Degree  and  nature  of  care  expected  of  an  

occupier of a cinema building:

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

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

this stage.  Two fundamental principles must be noticed at  

the threshold while answering that question. The first is that

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the  degree  and  nature  of  care  expected  of  an  occupier  

depends upon the fact situation in which the duty to care  

arises.  The  second  and  equally  important  principle  at  

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

situation would depend upon whether the person to whom  

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

trespasser. Of these the occupier owes the highest degree of  

care  to  a  contractual  visitor  viz.  a  person  who  pays  

consideration  to  be  present  on  the  premises  for  some  

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

an implied term in the contract between the occupier and the  

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

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

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

the  premises  apart  from  a  latent  defect.   Winfield  &  

Jolowicz on Tort (Sixteenth Edition) explains the duty of  

an  occupier  to  take  care  towards  different  categories  of  

visitors in the following passage:    

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“At common law the duties of an occupier were cast   in  a  descending  scale  to  four  different  kinds  of   persons and a brief account is necessary to gain a   full understanding of the Act. The highest degree of   care was owed by the occupier to one who entered   in pursuance of a contract with him (for example a   guest in an hotel): in that case there was an implied   warranty  that  the  premises  were  as  safe  as   reasonable care and skill could make them. A lower   duty  was owed to  the  “invitee”,  that  is  to say,  a   person  who  (without  any  contract)  entered  on  business of interest both to himself and the occupier   (for example a customer coming into a shop to view   the  wares):  he  was  entitled  to  expect  that  the   occupier  should  prevent  damage  from  unusual   danger, of which he knew or ought to have known.   Lower still was the duty to the “licensee”, a person   who entered with the occupier’s express or implied   permission but  without  any community  of  interest   with the occupier: the occupier’s duty towards him   was to warn him of any concealed danger or trap of   which  he  actually  knew.  Finally,  there  was  the   trespasser, to whom under the original common law   there  was  owed  only  a  duty  to  abstain  from  deliberate or reckless injury.

93. One  of  the  earliest  common  law  decisions  regarding  

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

2 KB 325 where  an  innkeeper  was held  liable  for  injury  

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

fire was caused because there was no proper mechanism for  

conveying  the  smoke  and  burning  soot  from the  kitchen

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chimney to the atmosphere. The mechanism for conveying  

the  smoke  had  been  installed  in  1910  by  an  architect  

employed  by  the  landlord  from whom the  innkeeper  had  

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

defect arose from the architect's negligence did not prevent  

liability from being imposed on the innkeeper. The relevant  

portion of the judgment is as follows:

“Where the occupier of premises agrees for reward   that a person shall have the right to enter and use   them  for  a  mutually  contemplated  purpose,  the   contract between the parties (unless it provides to   the contrary) contains an implied warranty that the   premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them.   The  rule  is  subject  to  the  limitation  that  the   Defendant is not to be held responsible for defects   which could not have been discovered by reasonable   care or skill  on the  part  of  any person concerned   with  the  construction,  alteration,  repair,  or   maintenance of the premises: and the head-note to   Francis  v.  Cockrell must  to  this  extent  be  corrected.  But  subject  to this  limitation  it  matters   not whether the lack of care or skill be that of the   Defendant or his servants, or that of an independent   contractor  or  his  servants,  or  whether  the  negligence takes place before or after the occupation   by the Defendant of the premises.”

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

further obligation which too the occupier must discharge in

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

discharged.  Such  duties  are  often  cast  under  statutes  

enacted by the legislature or in Rules & Regulations framed  

in  exercise  of  powers  delegated  under  such  enactments.  

These additional safeguards against injury to life and limb of  

innocent parties who are working in the premises or who visit  

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

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

concerned  about  the  safety  of  those  visiting  such  public  

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

other place of entertainment or a place where people go for  

any  other  purpose  whether  as  contractual  visitors  or  

otherwise.  The existence of such a statutory duty especially  

one  that  concerns  safety  of  the  visitors  adds  another  

dimension to the duty to care to which we shall presently  

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

any such statutory duty was cast upon the occupier of the  

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

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95. The  Cinematograph  Act,  1952  inter  alia regulates  

exhibition of films by means of cinematographs.  Section 10  

of the Act, provides that save as otherwise provided under  

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

means  of  a  cinematograph  elsewhere  them  in  a  place  

licensed under this part or otherwise than in compliance with  

any  conditions  and  restrictions  imposed  by  such  license.  

Section 12 of the Act stipulates the restrictions on powers of  

the licensing Authority and forbids grant of a license except  

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

been substantially complied with and adequate precautions  

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

is  to  be  given  to  provide  for  safety  of  persons  attending  

exhibitions  therein.   Section  16  of  the  Act  empowers  the  

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

part as noticed above also makes safety of persons attending  

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

Delhi  Cinematograph Rules framed in exercise of  the said

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power explicitly makes the licensee responsible for the safety  

of those attending the exhibition of films.  It reads:

“10(1)  The  licensee  shall  be  responsible  for   compliance  with  the  provisions  of  these  rules  and  with  the  conditions  of  his  license,  for  the   maintenance  of  the  licensed  premises  at  all  times   and in all respects in conformity with the standards   prescribed by these rules and for taking all necessary  measures  before  any  cinematograph  exhibition  is   commenced to ensure the safety  of the public and   his employees against fire and other accidents.

(2)  The  licensee  or  some  responsible  person   nominated by him in writing for the purpose shall be   in  general  charge  of  the  licensed  premises  and  cinematograph  during  the  whole  time  where  any   exhibition is in progress.”

(emphasis supplied)

96. The  rules  make  further  provisions  for  safety  of  the  

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

Cinematograph  Act,  1953  provide  for  attendants  to  carry  

electric torches for use in emergency and for keeping the fire  

appliances  in  working order  and incharge  of  some person  

specially appointed for the purpose.  The said two rules may  

also be extracted at this stage:

“24.  Attendants  and  all  members  of  the  staff   employed in the building during an exhibition shall  

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carry electric  torches  for  use in  emergency in  the   event of failure of the lighting.

37.“Before the commencement of each performance   the cinematograph operator shall satisfy himself that   the  fire  appliances,  intended  for  use  within  the   enclosure  are  in  working  order,  and  during  the   performance such appliances shall be in the charge   of some person specially appointed for that purpose,   who shall see that they are kept constantly available   for use.”

97. The First Schedule to the DCR 1953 compliance whereof  

is  essential  for  grant  and  renewal  deals  extensively  with  

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

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

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

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

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

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

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

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

with emergency lights.

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

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

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those entering a cinema hall for watching the exhibition of a  

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

“taking  all  necessary  measures  before  a  cinematograph  

exhibition is commenced to ensure safety of the public and   

his employees against  fair  and other  accidents” leaves no  

manner of doubt that apart from the common law duty to  

care,  the  statutory  provisions  too  cast  such  an  obligation  

upon the licence/occupier of the cinema hall.

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

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

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

exists  under  the  common  law.  The  answer  can  be  best  

provided by a reference to the English decision in Lochgelly  

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

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

under common law, and this duty is additionally supported  

and  clarified  by  statutory  provisions,  a  breach  of  the  

statutory duty would be proof enough of negligence. It would  

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

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

legislation  is  to  put  that  particular  precaution  beyond  

controversy”.  

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

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

“In Lochgelly Iron & Coal Co Ltd v. M'Mullan, the  House of Lords came close to equating an action for   breach  of  statutory  duty  with  an  action  in   negligence.  Lord  Atkin  said  that  all  that  was  necessary to show “is a duty to take care to avoid   injuring;  and  if  the  particular  care to  be taken  is   prescribed by statute, and the duty to the injured   person  to  take  the  care  is  likewise  imposed  by   statute, and the breach is proved, all the essentials   of  negligence  are  present”.  Negligence  did  not   depend on the Court  agreeing with the legislature   that  the  precaution  ought  to  have  been  taken,   because the “very object of the legislation is to put   that  particular precaution beyond controversy”.  On  this approach breach of a statutory duty constitutes   negligence per se, but it applies only to legislation   which is designed to prevent a particular mischief in   respect of which the defendant is already under a   duty in common law. Failure to meet the prescribed   statutory standard is then treated as unreasonable   conduct  amounting  to  negligence,  because  a   reasonable  man  would  not  ignore  precautions   required by statute, and the defendant cannot claim   that  the  harm  was  unforeseeable  because  the   legislature has already anticipated it. The statutory   standard  “crystallises”  the  question  of  what   constitutes carelessness. On the other hand, where   legislation does not deal with circumstances in which   there is an existing common law duty, then, unless   expressly  stated,  breach  of  the  statute  would  not   give rise to an action,  because the damages may

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greatly  exceed  the  penalty  considered  appropriate   by the legislature.”

101. Reverting  back  to  the  degree  and  nature  of  care  

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

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

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

foreseeable dangers and harm. That is the essence of the  

duty  which  an  occupier  owes  to  the  invitees  whether  

contractual  or  otherwise.  The  nature  of  care  that  the  

occupier must, therefore, take would depend upon the fact  

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

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

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

the hotel would be expected to take would be different from  

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

former case, the occupier may be expected to ensure that  

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

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

guards are on duty when children or other guests are using

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the pool, that immediate medical succor is provided to those  

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

duty  is  in  that  sense  different  from  that  of  cinema  

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

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

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

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

emergency,  and  for  that  purpose  to  provide  suitable  

gangways and keep them clear of any obstruction, to provide  

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

emergency lighting, to provide fire fighting systems, alarm  

systems and to employ and keep trained personnel on duty  

whenever an exhibition of cinematograph is in progress.

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

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

and security of all those visiting the cinema for watching a  

cinematograph exhibition. What is important is that the duty  

to care is not a onetime affair. It is a continuing obligation  

which the occupier owes towards every invitee contractual or

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otherwise  every  time  an  exhibition  of  the  cinematograph  

takes place.  What is equally important is that not only under  

the common law but even under the statutory regimen, the  

obligation to ensure safety of the invitees is undeniable, and  

any  neglect  of  the  duty  is  actionable  both  as  a  civil  and  

criminal wrong, depending upon whether the negligence is  

simple or gross.   

103. In  the  case  of  gross  negligence  prosecution  and  

damages may be claimed simultaneously and not necessarily  

in  the  alternative.  We  may  at  this  stage  refer  to  a  few  

pronouncements to illustrate that the duty to care and the  

nature of care expected of any person accused of committing  

an offence under Section 304A IPC has always been seen in  

the  fact  situations  in  which  the  question  arose.  In  

Bhalchandra  Waman  Pathe  v.  State  of  Maharashtra  

1968 Mah. L.J. 423 (SC) this Court was dealing with a case  

where the regulations framed by the Commissioner of Police,  

under the Bombay Police Act, required the driver of car to  

look ahead and see whether there was any pedestrian in the

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crossing and  if  there  was one  to  wait  till  he  crossed the  

carriage way. The accused in that case had failed to take  

care and do that, resulting in the death of a pedestrian who  

was  crossing  the  road.  The  question  that  fell  for  

consideration was whether the driver was rash or negligent.  

This Court held that since the speed limit was 35 miles per  

hour, and since the accused was driving the car at 35 miles  

an hour, there was no rashness on his part in the absence of  

any other  circumstance showing that  he  was driving at  a  

reckless speed. Even so the charge of negligence was held  

proved against the accused as he had breached the duty cast  

upon him to see whether there was any pedestrian to the  

pedestrian  crossing.   Law,  observed  this  Court,  enjoined  

upon him and ordinary human prudence required him to do  

so. Failure of the accused to exercise that reasonable care  

and  caution  rendered  him  liable  in  criminal  law  to  a  

conviction  under  Section  304A  of  the  IPC.  This  Court  

approved  the  ratio  of  the  decisions  in Idu  Beg and  

Nidamarti cases (supra), that distinguished ‘rashness’ and

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‘negligence’,  and  held  that  while  rashness  implies  

recklessness  or  indifference  to  consequences,  negligence  

arises from neglect of a civic duty of circumspection, “which  

having  regard  to  all  the  circumstances  out  of  which  the   

charge has arisen, it was the imperative duty of the accused   

person  to  have  adopted.”  Rashness,  observed  this  Court,  

was undoubtedly a graver offence.     

104. In  Bhalchandra  @  Bapu  and  Anr.  v.  State  of   

Maharashtra, 1968 (3) SCR 766, this Court was dealing  

with a case in which an explosion in a factory manufacturing  

crackers had caused the death of some of the workers and  

injured others.  The findings recorded by the Courts below  

was that the accused had in their possession unauthorized  

explosives in contravention of the Act and the Rules and had  

committed  several  breaches  of  those  Rules  and  the  

conditions of the license issued to them.  Relying upon the  

decisions of this Court in  Kurban Hussein’s  case (supra)  

and  Suleman  Rahiman  Mulani’s  case  (supra),  it  was  

contended that mere violation of Rules or terms of a licence

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would not make the accused liable for any punitive action  

against  them.  The  decisions  of  this  Court  in  Kurban  

Hussein’s and Suleman Rahiman Mulani’s  cases (supra)  

were distinguished by this Court and the conviction of the  

accused  under  Section  304A  IPC  upheld  in  the  following  

words:

“...The  facts  of  the  present  case  are  somewhat   different  and  distinguishable  from  those  of  the   above  two  cases  as  will  be  clear  from  a  close  examination of the material evidence relating to the   substances  which  were  being  used  in  the   manufacture of the fire works etc. in the factory of   the appellants...

xx xx xx

…Although  there  was  no  direct  evidence  of  the   immediate cause of the explosion but indisputably   the  explosives  the  possession  of  which  was  prohibited under the notifications issued under the   Act were found in the shops or the premises where   the  appellants  carried  on  their  business  and  the   substances that have been mentioned which were of   a  highly  hazardous  and  dangerous  nature  were   apparently being used in the manufacture of the fire   works  since  they  were  found at  the  scene  of  the   explosion, (vide the evidence mentioned before and   the  finding  of  the  trial  court  and  the  Additional   Sessions Judge). As stated by Dindeshchandra PW  10 these explosives had sensitive compositions and   even friction or percussion could cause explosion. It   is further proved that in the factory itself where the   explosion  took  place  the  persons  who  were   employed  were  mostly  women  who  brought  their   small children with them and young children below

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the  age  of  18  had  been  employed  in  the   manufacture of the fire works etc. The factory was   situate in close proximity to residential quarters. It   became  therefore  all  the  more  incumbent  on  the   appellants  to  have  completely  avoided  the  use  of   highly  sensitive  compositions  of  the  nature   mentioned above.

The decision which is apposite to the present   case is the one recently delivered by this Court on   April 3, 1968 in Rustom Sherior Irani v. State of  Maharashtra. There the chimney of a bakery had  collapsed  and  11  persons  were  killed  and  certain   persons were injured. The appellant had submitted   no  plan  for  the  alteration  of  the  chimney  for  the   third time and had asked just a mason to remove   the iron pipe which had corroded and to bring the   height of the chimney to 65 feet.  The mason had   told him that while the work was being executed it   was  unnecessary  to  completely  keep  the  bakery   closed except during the period the repair work was  being done. After the chimney fell down a number of   officers visited the spot and inspected the bakery.   The  Chief  Inspector  of  Boilers  was  of  the  opinion   that the cause of the collapse of the chimney was   the  explosion which  occurred in  it  because of  the   products  of  combustion  and  gases  not  being   permitted  to  escape  freely  as  a  pipe  of  6  inches   diameter  had  been  put  instead  of  12  inches   diameter. It is unnecessary to refer to the detailed   discussion of the evidence. It was established that   the construction of the new chimney had been done   without  the  advice  of  a  properly  qualified  person.   The argument raised was on the lines similar to the   one  which  had  been  advanced  in  Kurban  Hussein  Mohammedali Rangwalla v. State of Maharashtra. It  was maintained that  no negligence on the part  of   the  appellant  had been established  and it  was on   account  of  the  negligence  of  the  mason  that  the   chimney had fallen down. This Court was of the view   that the proximate and efficient cause of the deaths   was the negligence of the appellant  in choosing a   pipe of 6 inches diameter and asking a mason (who   was apparently not a qualified person) to carry out  

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the alterations and also continuing working atleast   one  oven  there  during  the  period  while  the   alterations to the chimney were being made.”

105. This Court referred with approval to  Queen Empress  

v.  Bhutan ILR XVI All.  472 and  Kamr-ud-din v.  King  

Emperor 1905 PR 22(Cr) and English decisions in Regina  

v.  David  Dant,  169 English  Reports  (C.C.)  1517 and  

Rex. v. Pittwood (1902) 19 TLR 37 to hold that criminal  

negligence can be found on varying sets of circumstances,  

and that the tests applied in the said cases including the list  

of direct or efficient cause was fully applicable to the case at  

hand. It is noteworthy that in Rex. v. Pittwood (supra), the  

prisoner was charged with manslaughter on the ground that  

he had been negligent in not closing a gate when a train  

passed which it was his duty to do with the result that White  

who was in a hay cart was killed while the cart was struck by  

the train which came when it  was crossing the line.  The  

Court had in that case, held the prisoner liable as it was his  

duty to keep the gate shut to protect the public against an  

oncoming  train.  This  act  of  misfeasance  was  held  to

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constitute  gross  negligence  in  the  discharge  of  his  duty  

towards  the  public  crossing  the  road,  amounting  to  an  

offence of manslaughter.

106. In S.N. Hussain’s case (supra), this Court was dealing  

with an R.T.C. bus that met with an accident at a manned  

railway level crossing which was in the charge of a gateman  

whose duty  it  was to  close  the  gate  when  the  train  was  

expected  to  pass  by.  When  the  bus  reached  the  level  

crossing the gate was open. The accused- bus driver finding  

the gate open crossed the meter gauge track when suddenly  

a goods train dashed against the bus on the rear side with  

the result that the bus was thrown off course causing serious  

injuries to several passengers, one of whom was killed in the  

accident. The appellant’s defense was that he was neither  

rash nor negligent and the accident was unavoidable for he  

did not realize that a goods train was passing at the time and  

since  the  gate  was  open  he  crossed  the  railway crossing  

absolutely oblivious of the fact that a train was approaching.

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107. The Trial Court accepted that explanation and acquitted  

the  accused.  The  High  Court  reversed  the  order  and  

convicted  him.  This  Court  relying  upon  the  definition  of  

criminal rashness and criminal negligence given by Straight  

J.  in  Empress v.  Idu  beg  (supra)  and  in  Bhalchandra  

Waman Pathe v. State of Maharashtra (supra) held that  

where  a  railway level  crossing was unmanned,  it  may be  

right to insist that the driver of the vehicle should stop the  

vehicle, look both ways to see if a train is approaching and  

thereafter drive the vehicle after satisfying that there was no  

danger in crossing the railway track. Where the level crossing  

was protected by a gateman and the gateman opens out the  

gate  inviting the  vehicles  to  pass,  it  will  be  too  much to  

expect the driver to stop his vehicle and look out for any  

approaching  train.  The  Court  accordingly  acquitted  the  

appellant of the offence punishable under Section 304A IPC.   

108. A conspectus of the decisions quoted above reveals that  

an offence under Section 304A IPC may arise under a variety  

of circumstances, ranging from reckless driving of vehicles to

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negligent handling of explosives in a factory. In every case,  

this Court has been mindful to determine the nature of care  

which ought to have been exercised by the accused person in  

the context of all the facts and circumstances of that case.  

Moreover,  this  Court  has  been  careful  while  applying  or  

distinguishing preceding case law relating to Section 304A to  

read  each  case  in  the  context  of  its  own  facts,  without  

deriving from it any general propositions to be applied in all  

cases dealing with the same offence. Therefore, the question  

of the nature of care which ought to have been exercised by  

the  occupiers  of  Uphaar  Cinema,  as  ordinary  prudent  

businessmen, must be decided solely on the totality of the  

facts and circumstances of the present case.   

109. In the case at hand, the claim for compensation has  

already been awarded by the High Court and affirmed by this  

Court, no matter against the company as the owner of the  

cinema hall.  Dealing with  the  question  of  negligence,  this  

Court in Municipal Council of Delhi, Delhi v. Association

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of Victims for Uphaar Tragedy and Ors. (2011) 14 SCC  

481 observed:

“27. At the outset it should be noted that the   causes for the calamity have been very exhaustively   considered by the High Court and it has recorded a   categorical  finding  about  the  negligence  and  the   liability on the part of the licensee and the DVB. On   the examination of the records, we agree with the   High Court that such a catastrophic incident would   not have happened if the parapet wall had not been   raised to the roof level. If the said wall had not been   raised,  the  fumes  would  have  dispersed  in  the   atmospheric air. Secondly if one of the exits in the   balcony had not been blocked by construction of an   owner's box and if the right side gangway had not   been  closed  by  fixing  seats,  the  visitors  in  the   balcony  could  have  easily  dispersed  through  the   other  gangway  and  exit  into  the  unaffected   staircase. Thirdly if the cars had not been parked in   the immediate vicinity of the transformer room and   appropriate  pit  had  been  made  for  draining  of   transformer oil, the oil would not have leaked into   the  passage nor would the burning oil  lighted the   cars, as the fire would have been restricted only to   the  transformer  room.  Even  if  one  of  the  three   causes for which the theatre owner was responsible,   was absent, the calamity would not have occurred.   The Licensee could not point out any error in those   findings. Ultimately therefore the contention of the   licensee before us was not to deny liability but only   to reduce the quantum of liability  fastened by the   High Court and to increase the share of the liability   of the three statutory authorities.

xxx xxx xxx

57. The  licensee  argued  that  the  entire  liability   should be placed upon the DVB. It was contended   that DVB have installed a transformer of a capacity   of  1000  KV  without  obtaining  the  statutory   sanction/approval  and  without  providing  all  the   safety measures which it was duty bound to provide  

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under the relevant Electricity Rules, and therefore,   DVB alone  should  be  responsible  for  the  tragedy.   This  contention  has no merit.  In fact  none in  the   main hall (ground floor of the theatre) died. Those   on the second floor also escaped. It is only those in   the balcony caught in noxious fumes, which died of   asphyxiation.  The  deaths  were  on  account  of  the   negligence and greed on the part of the licensee in   regard to installation of additional seats, in regard to   closing of an exit door, parking of cars in front of   transformer room by increasing parking from 15 to  35  and  other  acts.  We  therefore  reject  the   contention  that  DVB  should  be  made  exclusively   liable  to  pay  the  compensation.  We  have  already   held that the Licensing Authority and MCD are not   liable. Therefore, the liability will be 85% (Licensee)   and 15% (DVB).”

110. Mr.  Jethmalani,  however,  argued  that  the  findings  

recorded  by  this  Court  while  dealing  with  the  claim  for  

payment of damages could not be made a basis for holding  

the appellant-Ansal Brothers guilty of an offence punishable  

under  Section  304A  of  the  IPC,  not  only  because  those  

findings were not recorded in relation to the appellants but  

also because  the  standard  of  proof  required  for  award of  

compensation was different  from that  required to prove a  

criminal  charge.  There  is  merit  in  that  contention.   The  

standard of proof required being different,  simply because  

damages  have  been  awarded  against  the  owner  of  the

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cinema hall can be no reason why the occupier should be  

found guilty of gross negligence required to be proved for an  

offence  under  Section  304A.  The  claim  for  payment  of  

compensation was at any rate made and awarded against  

the company who owned the cinema hall. This Court cannot  

in  that  view  make  use  of  the  findings  recorded  in  the  

compensation case nor is it otherwise necessary for us to do  

so for the evidence adduced at the trial is sufficient for us to  

independently  determine the question of negligence as also  

the  criminal  liability  of  the  occupier  of  the  cinema arising  

from the same.

111. The nature of care in the case of cinema theatres would  

depend upon three primary factors that the occupier of the  

cinema must at all times bear in mind. The first is that the  

cinema hall is an enclosed and necessarily a dark space to  

which public at large have access on payment of a price for  

the  ticket  that  entitles  him  to  watch  the  exhibition  of  a  

cinematograph.  Such theatres, at any given point of time,  

admit large crowds of people whose safety is the obligation of

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the occupier till such time they leave the precincts of the  

theatre.  The duty to take care regarding the safety of those  

admitted to watch an exhibition rests with the occupier who  

can and ought to even by the most ordinary standards of  

prudence  foresee  that  in  the  event  of  anything  untoward  

happening whether out of a fire incident or otherwise, those  

inside the cinema premises can be safe only if they exit from  

the  same  as  rapidly  as  possible.   Any  delay  whether  on  

account of obstruction in or around the exit points or in the  

gangways  can  be  reasonably  foreseen  by  any  prudent  

businessman  running  the  business  of  exhibition  of  

cinematographs  to  be  extremely  hazardous  and  at  times  

suicidal, with the potential of claiming human lives whether  

out of a stampede, panic or  asphyxiation in the event of a  

fire.  It does not require any extra expertise for a cinema  

owner or the occupier of a cinema theatre to foresee such  

consequences  and  to  take  remedial  steps  to  prevent  the  

same as a part of his duty to care towards those visiting the  

theatre.

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112. The second and equally important dimension relevant to  

the duty of an occupier of a cinema theatre concerns the  

statutory  provisions  that  regulate  such  duties  and  make  

certain safety measures essential. As previously discussed,  

the effect of such statutory provisions where the nature of  

care is specifically outlined is that an occupier cannot argue  

in defence that any danger arising out of violation or non-

adherence  to  the  provisions  of  the  statute  was  not  

reasonably foreseeable by him. The decision of the House of  

Lords in  Lochgelly’s case (supra) succinctly explains  “the  

effect  of  an  additional  statutory  burden  cast  upon  an  

occupier where a common law duty already exists.”

113. The third dimension that must also be constantly borne  

in  mind  while  determining  whether  the  occupier  had  

breached his duty to care towards the safety of the patrons  

is “that degree of care which an occupier is required to take   

is  commensurate  with  the  risk  created”  as  held  by  Lord  

Macmillan in Read v. J. Lyons & Co. Ltd. [1947] AC 156  

and an earlier decision in  Glasgow Corp v. Muir (1943)

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AC 448. The application of that proposition is appropriate in  

the case at hand where the installation of a DVB transformer  

within the cinema premises had increased the degree of risk  

on  account  of  fire  hazard  which  resultantly  enhanced  the  

degree of care expected of the occupiers in maintenance of  

the  safety  measures  for  the  safety  of  those  inside  the  

theatre.   

114. Summarising the common law duty as enhanced and  

reinforced by the provisions of Cinematograph Act, 1952 and  

the DCR, 1953, the appellant-Ansal brothers as occupiers of  

the  cinema were  duty  bound to  take  care  and such care  

included the care to:

(i) To provide a seating arrangement which  

ensured easy access to exits to all patrons in the event  

of an emergency, wherever they may be seated.

(ii) To  provide  vertical  and  horizontal  

gangways of  appropriate  width along all  sides  of  the  

auditorium/balcony as well as down the centre of the

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seating accommodation to provide convenient access to  

the exits.

(iii) To provide an adequate number of well-

marked exits suitably spaced along both sides of the  

auditorium/balcony and along the back thereof, leading  

directly into at least two independent thoroughfares so  

as to provide speedy egress to the patrons.

(iv) To  provide  at  least  two  stairways  of  

adequate width for public use, providing access to every  

upper floor in the building.

(v) To ensure that there was no obstruction  

in the gangways and other pathways to the exits, as  

well as the staircases leading to open space.

(vi) To provide emergency lighting and well-lit  

exit  signs for  use in the  event  of  a  power  failure  or  

other emergency in order to guide patrons from out of  

the dark.

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(vii) To put in place a working public address  

and/or alarm system to warn patrons in the event of  

any danger so that they may exit from the premises  

without delay or loss of time.

(viii) To  provide  an  adequate  number  of  fire  

extinguishers and/or other fire-fighting equipment and  

to keep them readily available for use in an emergency  

at all times.

(ix) To appoint an adequate number of torch  

men  and  persons  in  charge  of  the  fire-fighting  

equipment to be present throughout the duration of a  

film  exhibition  to  aid  and  guide  patrons  out  of  the  

theatre as and when such a need arises.    

(viii) Whether the accused were negligent and if so,  whether the negligence was gross:

115. The  Courts  below  have  concurrently  found  that  the  

occupiers  of  the  cinema  building  had  committed  several  

deviations  from  the  sanctioned  building  plan  apart  from

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breaches  of  statutory  provisions.  These  deviations  and  

breaches may not have directly contributed to the death of  

the victims in the instant case but the same cannot be said  

to be wholly irrelevant for purposes of determining whether  

or not the occupiers had neglected their duty to care and if  

they had, whether such neglect was gross in nature.  The  

concurrent  findings  of  the  Courts  below in  the  nature  of  

deviations from the sanctioned building plan of the cinema  

and  the  statutory  requirements  may  be  enumerated  as  

under:-

(1) That the occupiers permitted the installation of a DVB  

transformer  within  the  cinema  premises,  although  the  

building plan did not envisage or permit any such installation.  

The  occupier’s  contention  that  the  installation  of  the  

transformer was under coercion remained unsubstantiated.  

(2) That the rear parapet wall behind the transformer room  

was constructed upto the ceiling height thereby preventing  

smoke rising from the burning transformer oil and the cars

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parked in  the  parking area  from dispersing into the  open  

atmosphere.  

(3) That the stairway leading to the terrace was obstructed  

by the installation of a full width door in the staircase landing  

as well as construction of a reception counter in the staircase  

leading to the terrace by Sarin Associates  one of the tenants  

inducted by the owners.  

(4) That the exhaust fans opened into the staircase rather  

than into an open space thereby defeating the purpose of  

their installation.

(5) That a homeopathic dispensary was constructed above  

the ramp behind the transformer room which was found to  

be and described as a fire hazard during MCD inspections  

since 1983.

(6)That the staircase around the lift leading to the basement  

was being used by M/s Sehgal Carpets by conversion of that  

area into an office was an additional hazard and against the  

sanctioned plan.

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(7) That  the  enclosure  of  the  open  space  adjoining  the  

transformer room to be used as a ticket  counter  and the  

creation of a glazed verandah next to the Manager’s room  

were also deviations from the building plan.

(8) That conversion of the Operator room on the second  

floor into an office-cum-bar room too was a deviation.

(9) That  letting  out  of  the  top  floor  as  office  space  with  

wooden partitions was also a deviation and was pointed out  

to be a safety hazard during fire safety inspections.

(10) That  out  of  22  fire  extinguishers  seized  after  the  

incident  from  various  parts  of  the  building  including  the  

parking lot and balcony, 10 were empty, 4 were not working  

properly while 1 was leaking from the top. This meant that  

only 7 of such extinguishers were in working condition.

(11) That  neither  the  Projector  Operator  nor  any  other  

person present during the exhibition of the cinematograph  

was trained in fire fighting as required in DCR 1953.

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116. The above deviations, it was rightly contended by Mr.  

Jethmalani  did  not  constitute  the  causa  causans  for  the  

death  of  the  victims  in  the  instant  case.   Even  so  two  

inferences are clearly available from these deviations namely  

(i) That  the  occupiers  of  the  cinema  building  were  not  

sensitive towards the demands of safety of the patrons and  

amply showed that the safety of the visitors to the theatre  

was a matter of low priority for the occupiers and (ii) That  

the deviations raised the level of risk to the safety of the  

patrons  which  in  turn  required  the  occupiers  to  

proportionately raise the level of their vigil and the degree of  

care  in regard to the  safety of  those visiting the  cinema.  

Instead of removing the deviations and the perceived fire  

hazards  and  thereby  reducing  the  risk  of  exposing  the  

patrons to avoidable dangers to their  safety the occupiers  

committed several breaches that directly contributed to the  

loss of valuable human lives.  For instance both the Courts  

have concurrently held the following breaches to have been  

established, by the evidence adduced by the prosecution:

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(1) That the cinema did not have any functional Public  

Address System necessary to sound an alarm in the  

event of a fire or other emergency.  The PA system of  

the cinema was found to be dysfunctional at the time  

of the occurrence hence could not be used to warn or  

to sound an alarm to those inside the cinema to exit  

from the hall and the balcony.

(2) That  the  emergency  lighting  even  though  an  

essential  requirement  and so also the well-lit  exits  

stipulated under the DCR 1953 were conspicuous by  

their absence.  The failure of the electric supply on  

account  of  tripping  of  the  main  supply  lines  

consequently  plunged  the  cinema  hall  and  the  

balcony area into darkness leaving those inside the  

balcony panic stricken and groping in the dark to find  

exits in which process they got fatally exposed to the  

carbon monoxide laden smoke that had filled the hall.

(3) That  blocking  of  the  vertical  gangway  along  the  

rightmost  wall  and  the  narrowing  of  the  vertical

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gangway along the right side of the middle exit by  

installation  of  additional  seats  had  the  effect  of  

depriving the patrons of the facility to use the right  

side gangway and the gangway along the middle exit  

for quick dispersal from the balcony

(4) That the closure of the right side exit in the balcony  

area  by  installation  of  a  private  eight-seater  box  

permanently cut off access to the right side staircase  

and thereby violated not only the DCR 1953 but also  

prevented the patrons from using that exit and the  

right  side  stairway  for  quick  dispersal  from  the  

balcony.   

(5) That the introduction of the new exit in the left wing  

of the balcony in lieu of the closed right side exit did  

not  make  up  for  the  breach  of  Para  10  (4),  First  

Schedule of DCR 1953 which mandates that exits on  

both sides of the auditorium/balcony.

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(6) That failure to introduce fourth exit even when the  

total number of seats in the balcony had gone above  

300 with the addition of 15 more seats installed in  

1980, further compromised the safety requirements  

statutorily prescribed under the DCR.

(7) That  bolting of the middle entry/exit  doors leading  

into the foyer obstructed the flow of patrons out of  

the  balcony  exposing  them  to  poisonous  gas  that  

spread into the hall for a longer period then what was  

safe for the patrons to survive.

(8) That the absence of any staff members to open the  

exit gates and to generally assist the patrons in quick  

dispersal  from the  balcony resulted  in  the  patrons  

inhaling  poisonous  gas  and  dying  because  of  

asphyxiation.

(9) That the bolting of the door leading from the foyer  

into the right side staircase and outside which had to

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be  forced  open  also  prevented  the  quick  dispersal  

and led to a large number of causalities.

(10) That  construction  of  the  refreshment  counter  near  

the exit gate of the first floor and another near the  

second floor inhibited free passage of the patrons.

117. That the breaches enumerated above have been proved  

by the  evidence  adduced at  the  trial  is  concluded by the  

concurrent findings recorded by the two Courts below. There  

is, in our opinion, no perversity in the conclusions drawn by  

the Courts below on the aspects enumerated above. In the  

light  of  those  conclusions  it  can  be  safely  said  that  the  

occupiers had committed a breach of their duty to care and  

were, therefore, negligent.   

118. The  argument  that  the  incident  in  question  was  not  

reasonably foreseeable must in the light of what is stated  

above  be  rejected.  So  also,  the  argument  that  since  no  

untoward incident had occurred for many years prior to the  

occurrence that claimed so many lives, the same indicated

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that the occurrence was not reasonable foreseeable deserves  

to be mentioned only to be rejected.  A similar contention  

had  in  fact  been  rejected  by  this  Court  even  in  Kurban  

Hussein’s case (supra), where this Court said :

“In particular it  is urged that this method of   work has been going on for some years and no fire   had broken out  and this  shows that  though there   may have been possible danger to human life from   such  fire  or  combustible  matter  there  was  no  probable  danger.  We  are  unable  to  accept  this   contention. The fact that there was no fire earlier in   this room even though the process had been going   on for some years is not a criterion for determining   whether the omission was such as would result in   probable danger to human life.”

119. To  the  same effect  is  the  observation  made  by  this  

Court in  State through PS Lodhi Colony, New Delhi v.   

Sanjeev Nanda (2012) 8 SCC 450, where this Court held  

that just because the accused in that case had driven for  

sixteen kilometers without any untoward incident did not by  

itself provide him a defence, or prove his innocence.    

(viii) Whether the accused were negligent and if so,   

whether the negligence was gross:      

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120. The question then is whether the negligence of Ansal  

brothers-the occupiers of the cinema was so gross so as to  

be culpable under Section 304A of the IPC. Our answer to  

that question is in the affirmative. The reasons are not far to  

seek.  In the first place the degree of care expected from an  

occupier  of  a  place  which  is  frequented  everyday  by  

hundreds and if not thousands is very high in comparison to  

any other  place that  is  less frequented or  more sparingly  

used for public functions .  The higher the number of visitors  

to a place and the greater the frequency of such visits, the  

higher would be the degree of care required to be observed  

for  their  safety.   The duty is continuing which starts with  

every  exhibition  of  cinematograph  and  continues  till  the  

patrons  safely  exit  from  the  cinema  complex.  That  the  

patrons are admitted to the cinema for a price, makes them  

contractual invitees or visitors qua whom the duty to care is  

even otherwise higher than others. The need for high degree  

of care for the safety of the visitors to such public places  

offering  entertainment  is  evident  from  the  fact  that  the

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Parliament  has  enacted  the  Cinematograph  Act  and  the  

Rules,  which  cast  specific  obligations  upon  the  

owners/occupiers/licensees  with  a  view  to  ensuring  the  

safety  of  those  frequenting  such  places.  The  annual  

inspections and the requirements of No Objection Certificates  

to  be  obtained  from authorities  concerned  is  yet  another  

indicator of how important the law considers the safety of the  

patrons to be.  Any question as to the nature and the extent  

of  breach must therefore  be seen  in  the  backdrop of  the  

above  duties  and  obligations  that  arise  both  under  the  

common law and the statutory provisions alike. Judged in the  

above backdrop it is evident that the occupiers in the present  

case had showed scant regard both for the letter of law as  

also their duty under the common law to care for the safety  

of their patrons. The occupiers not only committed deviations  

from  the  sanctioned  building  plan  that  heightened  the  

dangers to the safety of the visitors but continued to operate  

the cinema in contemptuous disregard for the requirements  

of law in the process exposing the patrons to a high degree

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of risk to their lives which some of them eventually lost in the  

incident  in  question.   Far  from taking any additional  care  

towards safety of the visitors to the cinema the occupiers  

asked for permission to place additional seats that further  

compromised the safety requirements and raised the level of  

risks to the patrons.  The history of  litigation between the  

occupiers on the one hand and the Government on the other  

regarding  the  removal  of  the  additional  seats  permitted  

during  national  emergency  and  their  opposition  to  the  

concerns  expressed  by  the  authorities  on  account  of  

increased  fire  hazards  as  also  their  insistence  that  the  

addition or  continuance  of  the  seats  would not  affect  the  

safety requirements of the patrons clearly showed that they  

were more concerned with making a little more money out of  

the few additional seats that were added to the cinema in the  

balcony rather  than maintaining the required standards of  

safety in discharge of the common law duty but also under  

the provisions of the DCR 1953.

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(ix) Further contentions urged in defence and findings  

thereon:

121. Appearing for the appellant Sushil Ansal, Mr. Jethmalani  

strenuously  argued  that  the  death  of  59  persons  in  the  

incident in question was caused by the fire that started from  

the  DVB  transformer,  which  was  poorly  maintained  and  

shabbily repaired by the DVB officials on the morning of 13th  

June, 1997 the date of incident.  The causa causans for the  

loss of human lives thus was the transformer that caught fire  

because of the neglect of the DVB officials who did not even  

have a crimping machine to repair the transformer properly.  

The absence of an oil soaking pit in the transformer room  

was also a reason for the oil to spill out from the transformer  

room to  spread  the  fire  to  the  parking  area  from where  

smoke containing lethal carbon monoxide rose, and due to  

chimney effect,  entered  the  hall  to  cause  asphyxiation  to  

those  inside  the  balcony.   He  urged  that  there  was  no  

evidence that any death had taken place inside the balcony  

which proved that most if not all the patrons sitting in the

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balcony had exited from that area, but died on account of the  

poisonous effect of the gas enough to kill human being within  

minutes  of  exposure.   Heavy  reliance  was  placed  by  Mr.  

Jethmalani  upon  the  decision  of  this  Court  in  Kurban  

Hussein’s case (supra) in support of his submission that the  

causa causans in the case at hand was the fire in the DVB  

transformer and not  the alleged deviations in the building  

plan or the seating arrangement or the obstructions in the  

staircase, that led out of the cinema precincts.

122. Mr. Harish Salve, appearing for the CBI and Mr. K.T.S.  

Tulsi appearing for  the Victims Association contended that  

while there was no quarrel with the proposition that death  

must be shown to have occurred as a direct, immediate or  

proximate result of the act of rashness or negligence, it was  

not correct to say that the deaths in this case had occurred  

because  of  the  fire  in  the  transformer.   It  was  also  not  

correct to draw any analogy on facts with any other decided  

case including that of  Kurban Hussein (supra).  Failure of  

the victims to rapidly exit from the smoke filled atmosphere

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in the balcony area because of obstructions and deviations  

proved at the trial was the real, direct and immediate cause  

for the death of the victims in the present case who would  

have safely escaped the poisonous carbon monoxide gas only  

if there were proper gangways, exits, emergency lights, an  

alarm system in  working  condition  and  human  assistance  

available to those trapped inside the hall.

123. We have at some length dealt with the ingredients of an  

offence  punishable  under  Section  304A  of  the  IPC  in  the  

earlier part of this judgment. One of those ingredients indeed  

is that the rash or negligent act of the accused ought to be  

the direct, immediate and proximate cause of the death.  We  

have in that regard referred to the decisions of this Court to  

which we need not refer again.  The principle of law that  

death  must  be  shown  to  be  the  direct,  immediate  and  

proximate result of the rash or negligent act is well accepted  

and not in issue before us as an abstract proposition. What is  

argued and what falls for our determination is whether the  

causa causans  in the case at hand was the fire in the DVB

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transformer as argued by the defence or the failure of the  

victims to rapidly exit from the balcony area.  Two aspects in  

this connection need be borne in mind.  The first is that the  

victims in the instant case did not die of burn injuries.  All of  

them died because of asphyxiation on account of prolonged  

exposure  to  poisonous  gases  that  filled  the  cinema  hall  

including the balcony area.  Fire, whatever may have been  

its source, whether from the DVB transformer or otherwise,  

was the causa sine qua non for without fire there would be  

no smoke possible and but for smoke in the balcony area  

there would have been no casualities.  That is not, however,  

the same thing as saying that it was the fire or the resultant  

smoke that was the causa causans. It was the inability of the  

victims to move out of the smoke filled area that was the  

direct  cause  of  their  death.   Placed  in  a  smoke  filled  

atmosphere any one would distinctively try to escape from it  

to  save  himself.   If  such  escape  were  to  be  delayed  or  

prevented the causa causans for death is not the smoke but  

the  factors  that  prevent  or  delay  such  escape.   Let  us

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assume  for  instance  that  even  when  there  are  adequate  

number of exits, gangways and all other safety measures in  

place  but  the  exits  are  locked  preventing  people  from  

escaping. The cause of death would in such case be the act  

of preventing people from exiting from the smoke filled hall,  

which may depending upon whether the act was deliberately  

intended to cause death or unintended due to negligence,  

amount to culpable homicide amounting to murder or an act  

of  gross  negligence  punishable  under  Section  304A.  

Similarly take a case where instead of four exits  required  

under the relevant Rules, the owner of a cinema provides  

only one exit, which prevents the patrons from exiting rapidly  

from the smoke filled atmosphere, the causa causans would  

be the negligent act of providing only one exit instead of four  

required for the purpose.   

124. It  would  in  such  circumstances  make  no  difference  

whether the fire had started from a source within the cinema  

complex or outside, or whether the occupiers of the cinema  

were responsible for the fire or someone else.  The important

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question to ask is what the immediate cause of the death  

was.  If failure to exit was the immediate cause of death  

nothing further need be considered for that would constitute  

the  causa causans. That  is what happened in the case at  

hand. Smoke entered the cinema hall and the balcony but  

escape was prevented or at least delayed because of breach  

of the common law and statutory duty to care.

125. The second aspect is that while the rash or negligent  

act of the accused must be the causa causans for the death,  

the question whether and if so what was the causa causans  

in  a  given  case,  would depend upon the  fact  situation  in  

which  the  occurrence  has  taken  place  and  the  question  

arises.  This  Court  has  viewed the  causa  causans in  each  

decided case, in the facts and circumstances of that case.  If  

Hatim’s failure to stir the hot wet paint while Rosin was being  

poured into  it  was held  to  be  causa  causans,  in  Kurban  

Hussein’s  case (supra), the failure of the motorist to look  

ahead and see a pedestrian crossing the road even when the  

motorist was driving within the speed limit prescribed was

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held to be the causa causans for the death in Bhalchandra  

Waman  Pathe  v.  State  of  Maharashtra  (supra).   In  

Bhalchandra @ Bapu and Anr. v. State of Maharashtra  

(supra) where  an  explosion  in  a  factory  manufacturing  

crackers  claimed  lives,  this  Court  found  that  use  of  

explosives  with  sensitive  compositions  was  the  immediate  

cause  of  the  explosion  that  killed  those  working  in  the  

factory. In Rustom Sherior Irani’s case (supra), this Court  

found the  new chimney of  the  Bakery  was being  erected  

without the advice of a properly qualified person and that the  

factory owner was responsible for neglect that caused the  

explosion and not the mason employed by him for erecting  

the  chimney.  The  decision  in  Kurban  Hussein’s   case  

(supra) was cited but distinguished on facts holding that the  

choice of the low diameter pipe and engaging a mere mason  

not properly qualified for doing the job were the cause of the  

accident resulting in causalities.

126. It is in that view, not correct to say that the  causa  

causans in  the  present  case  ought  to  be  determined  by

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matching  the  colours  of  this  case  with  those  of  Kurban  

Hussein’s case (supra).  The ratio of that case lies not in the  

peculiar  facts  in  which  the  question  arose  but  on  the  

statement of law which was borrowed from the judgment of  

Sir  Lawrence  Jenkins  in  Emperor  v.  Omkar  Rampratap  

(supra).  The principle of law enunciated in that case is not  

under challenge and indeed was fairly conceded by Mr. Salve  

and Mr. Tulsi. What they argued was that when applied to  

the facts proved in the present case, the causa causans was  

not the fire in the transformer but the breaches committed  

by the occupiers of the cinema which prevented or at least  

delayed  rapid  dispersal  of  the  patrons  thereby  fatally  

affecting them because of carbon monoxide laden gas in the  

smoke filling the  atmosphere.   The  causa causans  indeed  

was the closure of the exit on the right side, the closure of  

the right side gangway, the failure to provide the required  

number of exits, failure to provide emergency alarm system  

and  even  emergency  lights  or  to  keep  the  exit  signs  

illuminated  and  to  provide  help  to  the  victims when they

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needed the same most, all attributable to Ansal brothers, the  

occupiers of the cinema. We have, therefore, no hesitation in  

rejecting  the  argument  of  Mr.  Jethmalani,  which  he  

presented  with  commendable  clarity,  persuasive  skill  and  

tenacity at his command.

127. Mr.  Jethamalani  next  argued  that  since  the  licensing  

authority had on the basis of the no objection certificates  

issued by the concerned authorities granted and from time to  

time  renewed  the  Cinema  licence,  the  appellant-Ansal  

brothers were protected under Section 79 of the IPC for they  

in good faith believed themselves to be justified in law in  

exhibiting  films  with  the  seating  and  other  arrangements  

sanctioned under  the said licence.   Reliance in support of  

that  submission  was  placed  by  Mr.  Jethmalani,  upon  the  

decision of this Court in Raj Kapoor v. Laxman (1980) 2  

SCC 175.

128. Mr.  Tulsi  on  the  contrary  argued  that  reliance  upon  

Section 79 of the IPC and the decision of this Court in  Raj  

Kapoor’s case (supra) misplaced.  He urged that immunity

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from penal action under the provisions of Section 79 of the  

IPC was founded on good faith which was totally absent in  

the  case at  hand where  the  occupiers  of  the  cinema and  

even those who were instrumental in the grant and renewal  

of  the  licence  and  no  objections  were  accused  and  even  

convicted by the Courts  below.  There was, therefore,  no  

question of the appellants taking shelter under the licence,  

the terms whereof were in any case breached by them to the  

misfortune of those who lost their lives in the incident.  

129. Section 79 of the IPC may, at this stage, be extracted:

“Section 79. Act done by a person justified, or   by mistake of fact believing himself  justified,   by law - Nothing is an offence which is done by any   person who is justified by law, or who by reason of a   mistake of fact and not by reason of a mistake of   law in good faith, believes himself to be justified by   law, in doing it.”

130. A  reading  of  the  above  shows  that  nothing  would  

constitute an offence under the IPC if the act done is:

(i)Justified in law,

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(ii) The act is done by a person who by reason  of a mistake of fact in good faith believes  himself to be justified by law in doing it.

131. In the case at hand the defence relies upon the latter of  

the two situations, in which the benefit of penal immunity will  

flow if (a) the person doing the act is acting under a mistake  

of fact and (b) the person doing the act in good faith believes  

himself to be justified by law in doing it.  The expression  

‘good faith’ is defined in Section 52 of the IPC as under:

“52. “Good faith”.-- Nothing is said to be done or   believed  in  “good faith”  which  is  done or believed   without due care and attention.”

132. In order that Ansal brothers, occupiers of the cinema  

could claim the benefit of Section 79, they were required to  

prove that the belief which they harboured about their act  

being justified in law was in good faith. The use of expression  

‘good faith’  necessarily brings in the question whether the  

person concerned had acted with due care and caution.  If  

they  had  not,  part  (b)  of  Section  79  would  have  no  

application to the case.

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133. The duty to care for the safety of the patrons, we have  

explained  in  the  earlier  part,  was  cast  upon  the  Ansal  

brothers occupiers of the cinema both in common law as also  

in terms of statutory provisions on the subject.  We have also  

held  that  the  evidence  adduced  at  the  trial  and  the  

concurrent  findings  recorded  by  the  Courts  below,  have,  

established the breach of that duty in several respects.  For  

instance  absence  of  any  Public  Address  System  to  warn  

those inside the cinema in the event of any emergency was  

in the facts and circumstances of the case a part of the duty  

to care which was breached by the occupiers.  This duty was  

a continuing obligation and had to be strictly discharged in  

respect of each cinema show conducted in the theatre. The  

grant of a licence or its renewal by the licensing authority did  

not in any manner relieve the occupiers of that obligation  

which  was  implicit  even  in  the  grant  and  the  renewals  

thereof.  Similarly,  the  requirement  that  the  cinema  must  

have  emergency  lights,  fire  extinguishers  and  that  the  

occupiers must provide help to the patrons in the event of

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any emergency ensuring rapid dispersal from the enclosed  

area were obligations that too were implicit in the issue and  

renewal of  the cinematograph licence.  Breach of all  these  

obligations could not be justified on the ground that a licence  

was granted or renewed in favour of the occupiers, licensee  

and no matter the duty to care towards safety of the patrons  

was neglected by the theatre owners or occupiers. Failures in  

the event of a mishap like the one at hand on account of  

failure of the occupiers to discharge their legal obligations to  

take care for the safety of the patrons cannot be held to be  

immune from prosecution simply because a licence to exhibit  

the films had been granted or renewed from time to time.  

134. The  argument  that  the  seating  arrangement  in  the  

balcony, the placement of the gangways, the number and  

the  positioning  of  the  exits,  were  matters  which  were  

examined and approved by the concerned authority, thereby  

entitling the occupiers to a  bona fide and good faith belief  

that  they  were  on  the  right  side  of  law,  no  doubt  looks  

attractive on first blush but does not stand closer scrutiny.

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The essence of Section 79 is a belief entertained in good faith  

about the legitimacy of what is being done by the person  

concerned.  Absence of good faith is enough to deny to him  

the  benefit  that  he  claims.  Good  faith  has  in  turn  to  be  

proved by reference to the attendant circumstances.  That is  

because good faith is a state of mind which can be inferred  

only from the circumstances surrounding the act in question.  

The  test  of  ordinary  prudence  applied  to  such  proved  

attendant  circumstances  can  help  the  Court  determine  

whether an act or omission was in good faith or otherwise.  

Having  said  that,  we  would  simply  recall  our  findings  

recorded earlier that the fundamental obligation and duty to  

care at all times rested with the occupiers of the cinema and  

the  licensee  thereof.   In  the  discharge  of  that  duty  the  

occupiers were not entitled to argue that so long as there  

was a license in their favour, they would not be accountable  

for the loss of life or limb of anyone qua whom the occupiers  

owed  that  duty.  The  duty  to  care  for  the  safety  of  the  

patrons, even independent of the statutory additions made

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to the same, required the occupiers to take all such steps  

and measures, as would have ensured quick dispersal from  

the cinema building of all the patrons inside the premises in  

the  event  of  an  emergency.  The  statutory  requirements  

were, in that sense, only additional safeguards which in no  

way mitigated the common law duty to care, the degree of  

such  care  or  the  manner  in  which  the  same  was  to  be  

discharged.   

135. That apart, a seating plan, which was in breach of the  

statutory  provisions  and  compromised  the  safety  

requirements prescribed under the DCR 1953, could hardly  

support  a  belief in good faith that  exhibition of films with  

such a plan was legally justified.  That is so especially when  

the  repeal  of  notification  dated  30th September,  1976  by  

which Uphaar was permitted 100 more seats was followed by  

a demand for removal of the additional seats.  Instead of  

doing so the occupiers/owners assailed that demand in Writ  

Petition No.1010 of 1979 before the High Court of Delhi in  

which the High Court directed the authorities to have a fresh

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look from the stand point of substantial compliance of the  

provisions  of  the  Cinematograph  Act.  The  High  Court  

observed:

“11.  Proposition No. 3:  It  has been already  made  clear  above  that  the  relaxation  was  granted  after   considering  the  public  health  and  the  fire  hazard   aspects. It is also clear that the very fact that the   relaxation could not be granted after bearing these   main considerations in mind would show that there   was  some  rule  for  the  extension  of  the  sitting   accommodation in these theatres within the Rules,   though the provision of some of the additional seats   may perhaps have been to some extent contrary to   some  of  the  Rules.  It  is  not  necessary  for  us  to   speculate on this question. It is enough to say that   the  result  of  the  cancellation  of  the  relaxation  is   simply the withdrawal of the relaxation. It does not   automatically  mean  that  all  the  additional  seats   which  were  installed  in  the  cinema  theatres  were   contrary  to  the  Rules  and  must,  therefore,  be  dismantled  without  any  consideration  as  to  how  many of these seats were in consonance with the   Rules and how many of them were contrary to the   Rules.

12. Our finding on proposition No. 3 is, therefore,   that the Administration will apply their mind to the   additional seats with a view to determine which of   them  have  contravened  which  rules  and  to  what   extent. They will bear in mind that the compliance   with the Rules is to be substantial and not rigid and   inflexible.”

136. If while carrying out the above directive, the authorities  

concerned  turned  a  blind  eye  to  the  fundamental  

requirement of the Rules by ignoring the closure of the right

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side  exit  and  gangway  prescribed  as  an  essential  

requirement under DCR 1953, they acted in breach of the  

rules  and  in  the  process  endangered  the  safety  of  the  

patrons. We shall presently turn to the question whether the  

repeal  of  the  notification  had  the  effect  of  obliging  the  

occupier/licensee  of  the  cinema  to  remove  the  seats  and  

restore the gangways and exits as originally sanctioned.  But  

we cannot ignore the fact that the occupiers/licensee of the  

cinema,  had  opposed  the  removal  of  the  additional  seats  

even  when  the  respondents  in  the  writ  petition  had  

expressed concerns about the safety of the patrons if the  

additional  seats  were  not  removed  which  removal  it  is  

evident would have by itself resulted in the restoration of the  

right side gangway.  So also the authorities ought to have  

insisted on the restoration of the right side exit by removal of  

the eight-seater  box which was allowed in the year 1978,  

ostensibly  because  with  the  right  side  gangway  getting  

closed  by  additional  seats  occupying  that  space  the  

authorities considered the continuance of the right side exit

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to be of no practical use.  Withdrawal of relaxation in the  

year 1979 ought to have resulted in the reversal of not only  

the fixing of additional seats but all subsequent decisions that  

proceeded on the basis thereof. It is difficult to appreciate  

how even  applying the  test  of  substantial  compliance  the  

authorities could consider the theatre to be compliant with  

the DCR 1953 especially in so far as the same related to an  

important aspect like gangways and exits so very vital for  

speedy  dispersal  from  the  cinema  hall.   To  add  further  

confusion to the already compromised safety situation, the  

occupiers asked for addition of 15 more seats in the year  

1980, which were also allowed, taking the number of seats in  

the balcony to 302, thereby, raising the requirement of exits  

from 3 to 4 in terms of para 10(2) of the First Schedule to  

DCR  1953.   This  requirement  was  not  relaxable  under  

proviso to Rule 3(3) of DCR 1953 and yet the authorities  

gave a go by to the  same in the  process,  permitting yet  

another breach that had the potential and did actually prove  

to be a safety hazard for those inside the theatre  on the

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fateful day. It is in the above backdrop difficult to accept the  

submission of the appellant occupiers that they acted in good  

faith and are, therefore, protected against prosecution under  

Section 79 of the IPC.

137. There is yet another angle from which the matter can  

be examined.  Proviso to Section 5A of the Cinematograph  

Act,  1952  protects  the  applicant  seeking  issue  of  a  

certificate, the distributor and the exhibitor as also any other  

person  to  whom the  rights  in  the  film may have  passed  

against punishment under any law relating to obscenity in  

respect  of  any  matter  contained  in  the  film  for  which  a  

certificate has been granted under clauses (a) or (b) of sub-

section (1) to Section 5A.   It reads:           

“Provided that the applicant for the certificate, any   distributor or exhibitor or any other person to whom   the rights in the film have passed shall not be liable   for punishment under any law relating to obscenity   in respect of any matter contained in the film for   which certificate has been granted under clause (a)   or clause (b)”  

138.  The above was added by Act 49 of 1981 with effect  

from 1st June,  1983.  The  decision  in  Raj  Kapoor’s  case

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(supra) relied upon by Mr. Jethmalani was earlier in point of  

time  and  is  distinguishable  because  the  question  there  

related to the effect of a certificate issued under Section 5A  

vis-à-vis the  prosecution  of  the  producer,  director  or  the  

holder of certificate for obscenity punishable under Section  

292 of the IPC or any other law for that matter. The addition  

of proviso to Section 5A (1) (supra) in any case sets the  

controversy  at  rest  and  grants  immunity  to  the  person  

exhibiting  a  film  to  the  public  in  accordance  with  the  

certificate issued by the board.  No such protection against  

prosecution is, however, available to the holder of a cinema  

licence  against  prosecution  for  a  rash  or  negligent  act  

resulting  in  the  death  of  anyone  visiting  the  cinema  and  

punishable under Section 304A of the IPC. In the absence of  

any such protection against prosecution for rash or negligent  

act resulting in death, unlike the protection that the statute  

itself  grants  against  prosecution  for  obscenity,  is  a  

circumstance that strongly suggests that no such protection  

was intended to be given to a licence holder against any such

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prosecution.   The  argument  that  absence  of  any  such  

protection  notwithstanding  the  occupiers/owners  of  the  

cinema may be protected in terms of Section 79 of the IPC is  

obviously founded on the plea that the appellants were under  

a  “mistake  of  fact”  when  they  in  good  faith  believed  

themselves to be justified in law in exhibiting films in the  

theatre, by reason of a license issued under the Act. The plea  

that the appellants were under a ‘mistake of fact’, however,  

remains unsubstantiated.  The concept of mistake of fact has  

been explained by Russel on Crime in the following words:

“When  a  person  is  ignorant  of  the  existence  of   relevant facts, or mistaken as to them, his conduct   may  produce  harmful  results  which  he  neither   intended nor foresaw.

xxx xxx xxx

Mistake can be admitted as a defence provided (1)   that the state of things believed to exist would, if   true,  have  justified  the  act  done,  and  (2)  the   mistake  must  be  reasonable,  and  (3)  that  the   mistake relates to fact and not to law.”

139. Ratanlal  and  Dhirajlal in  their  book  “Law  of  

Crimes” (23rd Edn.)  Page 199 similarly explains the  term  

“mistake” in the following words:

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“'Mistake'  is  not  mere  forgetfulness.  It  is  a  slip   'made, not by design, but by mischance'. Mistake, as   the term is used in jurisprudence, is an erroneous   mental  condition,  conception or conviction induced   by ignorance, misapprehension or misunderstanding   of the truth, and resulting in some act or omission   done or suffered erroneously by one or both of the   parties to a transaction, but without its  erroneous   character being intended or known at that time.

It may be laid down as a general rule that an   alleged offender is deemed to have acted under that   state  of  things  which  he  in  good  faith  and  on  reasonable  grounds believed to exist  when he did   the act alleged to be an offence.”    

140. In  the  case  at  hand,  the  appellants-occupiers  of  the  

cinema, have not been in a position to identify the facts qua  

which they were under a mistake nor is it clear as to how any  

such mistake of fact would have justified their  act in law,  

leave alone satisfy the third requirement of the mistake of  

fact being reasonable in nature.  The three tests referred to  

by Russel in the passage extracted above are not, therefore,  

satisfied in the case at hand to entitle the appellant occupiers  

to the benefit of Section 79 of the IPC.

141. Mr. Jethmalani next contended that the withdrawal of  

notification  dated  30th September,  1976 did  not  have  the  

effect  of  creating  an  obligation  for  the  occupiers  of  the

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cinema  to  remove  the  additional  seats  that  had  been  

permitted  under  the  said  notification.   In  support  of  that  

submission, he placed reliance upon Section 6 of the General  

Clauses  Act,  1897  and  two  decisions  of  this  Court  which  

according to him support the proposition that the principles  

underlying Section 6 are attracted even to notifications no  

matter  Section 6 does not  in terms apply. Elaborating his  

submission Mr. Jethmalani contended that the repeal of an  

enactment does not affect the previous operation of any such  

enactment or anything duly done or suffered thereunder. On  

the  same  principle  withdrawal  of  notification  dated  30th  

September,  1976  could  not,  according  to  Mr.  Jethmalani,  

affect  the  previous  operation  of  the  said  notification  or  

anything duly done or suffered thereunder.  This, contended  

Mr. Jethmalani, implied that additional seats permitted under  

notification dated 30th September, 1976 could continue in the  

theatre,  no matter  the notification under  which they were  

permitted was withdrawn.

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142. We regret our inability to accept that line of reasoning.  

We say so  for  reasons more  than  one.  In  the  first  place  

Section 6 of the General Clauses Act does not, in our opinion,  

have any application to  repeal  of  any rule,  notification or  

order.  The provision makes no reference to repeal of a rule,  

notification or order.  It reads:

“6.  Effect  of  repeal.-  Where  this  Act,  or  any   1[  Central  Act]  or  Regulation  made  after  the   commencement of this Act, repeals any enactment   hitherto made or hereafter to be made, then, unless   a different intention appears, the repeal shall not-

(a)  revive anything not in force or existing at the   time at which the repeal takes effect; or

(b) affect the previous operation of any enactment   so repealed or anything duly done or suffered   thereunder; or

(c) affect any right, privilege, obligation or liability   acquired,  accrued  or  incurred  under  any   enactment so repealed; or

(d) affect  any  penalty,  forfeiture  or  punishment   incurred in respect of any offence committed   against any enactment so repealed; or

(e) affect  any  investigation,  legal  proceeding  or   remedy in respect of any such right, privilege,   obligation,  liability,  penalty,  forfeiture  or   punishment as aforesaid;  

and  any  such  investigation,  legal  proceeding  or   remedy  may  be instituted,  continued  or  enforced,   and any such penalty, forfeiture or punishment may  

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be imposed as if the repealing Act or Regulation had   not been passed.”

143. It  is  manifest  from a  reading  of  the  above  that  the  

provision applies only to repeal by (i) the General Clauses Act  

or (ii) by a Central Act or (iii) by Regulation of any enactment  

hither to make or hereinafter to be made.  The expressions  

“Central Act” and  “Regulation”  appearing in Section 6 have  

been  defined  in  Sections  3(7)  and  3(50)  of  the  General  

Clauses Act, 1897 respectively as under:

“3.  Definitions. – In this Act, and in all Central Acts   and Regulations made after the commencement of   this Act, unless there is anything repugnant in the   subject or contexts, -

xxx xxx xxx

(7)  “Central Act” shall means an Act of Parliament,   and shall include –  

(a)  an  Act  of  the  Dominion  Legislature  or  of  the   Indain Legislature passed before the commencement   of the Constitution, and  

(b) an Act made before such commencement by the   Governor  General  in  council  or  the  Governor   General, acting in a legislative capacity.

xxx xxx xxx

(50)  “Regulation” shall mean a Regulation made  by  the  President  [under  article  240  of  the   Constitution and shall include a Regulation made by   the  President  under  article  243  thereof  and]  a  

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Regulation made by the Central Government under   the  Government  of  India  At,  1870,  or  the   Government of India Act, 1915, or the Government   of India Act, 1935."

.

144. There is in the light of the above no gainsaying that  

Section 6 does not have any application to, for instance, a  

rule,  a  notification  or  a  circular  whether  statutory  or  

otherwise.  It is confined to repeal of any enactment already  

in  existence  or  made after  the  enactment  of  the  General  

Clauses Act, 1897 by the General Clauses Act, 1952, or a  

Central Act or Regulation within the meaning of those terms  

as defined in Sections 3(7) and 3(50).  

145. Secondly,  because  the  decisions  in  State  of  Orissa  

and  Ors.  v.  Titaghur  Paper  Mills  Co.  Ltd.  and  Anr.   

(1985) Supp SCC 280 and Union of India v. Glaxo India  

Ltd.  and  Anr.  (2011)  6  SCC  668 do  not  extend  the  

application  of  Section  6  to  statutory  notifications  as  was  

sought to be argued by Mr. Jethmalani.  In Titaghur Paper  

Mills Co. Ltd.’s case (supra), this Court was dealing with the  

supersession of notifications issued under the Orissa Sales

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Tax  Act  on  the  tax  liability  accrued  under  the  repealed  

notification.  Although this Court held that a tax liability that  

was already incurred under the repealed notifications would  

remain  unaffected  by  the  repeal  of  the  notification  the  

decision does not go to the extent of holding that Section 6  

of the General Clauses Act or the principle underlying the  

said  provisions  would  be  attracted  to  such  repeal.  The  

reasoning  for  the  conclusion  of  this  Court,  it  appears,  is  

based on first principles more than Section 6 or its relevance  

to the  question of  repeal  of  a  notification.  This is evident  

from the following passage from the said decision:

“66…By  repealing  and  replacing  the  previous   notifications  by  other  notifications,  the  result  was   not  to  wipe  out  any  liability  accrued  under  the   previous  notifications.  If  this  contention  of  the   Respondents were to be accepted, the result would   be startling. It would mean, for example, that when   a  notification  has  been  issued  under  Section  5(1)   prescribing  a  rate  of  tax,  and  that  notification  is   later  superseded  by  another  notification  further   enhancing the rate of tax, all tax liability under the   earlier notification is wiped out and no tax can be   collected by the State Government in respect of any   transactions  effected  during  the  period  when  the   earlier notification was in force.”

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146. In Glaxo India Ltd.‘s case (supra), all that this Court  

declared  was that  the  effect  of  a  superseding  notification  

would have to be determined on a proper construction of the  

notification  itself  and  not  by  any  single  principle  or  legal  

consideration.   The  decision  mentioned  Section  6  of  the  

General Clauses Act only to state that it would not apply to  

notifications. This is evident from the following passage from  

the said decision:  

“39…The view of this Court in some of the decisions   is  that  the  expression  "supersession"  has  to  be  understood  to  amount  'to  repeal'  and  when  notification  is  repealed,  the  provisions  of   Section     6     of the General Clauses Act would not apply    to  notifications.  The  question  whether  statutory   obligations  subsist  in  respect  of  a  period  prior  to   repeal of a provision of a Statute or any subordinate   legislation  promulgated  thereunder  has  to  be  ascertained on legal considerations apposite to the   particular context. The matter is essentially one of   construction.  Such problems do not admit of being   answered on the basis of any single principle or legal   consideration.”   

  (emphasis supplied)

147. Thirdly,  because  the  effect  of  withdrawal  of  the  

notification in  the  instant  case  may have to  be  seen  and  

determined  on  first  principles.  We  find  it  difficult  to

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appreciate  how the  power  to  withdraw a  notification,  the  

existence whereof was not disputed by Mr. Jethmalani would  

remain meaningful and could be effectively exercised if the  

withdrawal of  such a  notification was to leave the  benefit  

under the notification flowing in perpetuity. The notification  

in  question  permitted  additional  seats  to  be  fixed  in  

relaxation of the rules and, if the argument of Mr. Jethmalani  

was to  be  accepted,  such relaxation and fixation of  seats  

would become irreversible even when the Government could  

legitimately exercise the power to recall such a relaxation.  

This  would  be  anomalous  and  would  have  the  effect  of  

emasculating the power of recall itself.  The power would be  

meaningful and so also its exercise, only if the same could  

undo whatever had already been done under it prospectively.  

Such an interpretation would not only recognize the power of  

withdrawal  but  also  protect  the  previous  operation  of  the  

repealed notification no matter limited to the extent that the  

occupiers  had  benefitted  by  fixation  of  such  seats  and

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collection of the price of the tickets sold upto the date of  

withdrawal.  

148. Last  but  not  the  least  is  the  fact  that  the  question  

whether  withdrawal  of  notification  dated  30th September,  

1976  would  have  the  effect  of  obliging  the  occupiers  to  

remove the additional seats could and ought to have been  

argued before the High Court in the writ petition filed by the  

occupiers/owners of cinema hall, in Isherdas Sahni & Bros  

and Anr.  v.  The  Delhi  Administration and Ors.   AIR  

1980 Delhi 147.  No such contention was, however, urged  

before  the  High  Court  in  support  of  the  challenge  to  the  

demand for  the  removal  of  the  seats  which  demand was  

based  entirely  on  assumption  that  the  withdrawal  of  the  

notification  has  had  the  effect  of  obliging  the  

owners/occupiers to restore status quo ante. The High Court  

took the view that recall of the notification would call for a  

review  qua each  cinema  hall  to  determine  whether  the  

continuance  of  the  seats  was  substantially  compliant  with  

DCR,  1953.  The  High  Court  accordingly  directed  the

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authorities concerned to have a fresh look applying the test  

of  substantial  compliance while determining the  liability of  

the owners/occupiers to remove the additional seats.  The  

occupiers  accepted  that  direction.  An  exercise  was  

accordingly undertaken though in our view, unsatisfactorily,  

for the authorities concerned failed to look into the safety  

requirements  which  ought  to  have  been  given  foremost  

importance in any such process.  The least, therefore, that  

can be said is that the argument that no obligation arose to  

remove the additional seats by reason of the repeal of the  

notification dated 30th September, 1976 is untenable not only  

on merits, but also because the same is no longer available  

in view of what has been stated above, and the fact that the  

question stands concluded by the judgment of this Court in  

Isherdas Sahni’s case (supra).    

149. We may at this stage deal with a threefold submission  

made by Mr. Jethmalani.  He contended that the appellant  

Ansal  Brothers  were  entitled to  assume that  the  licensing  

authority  had  done  its  duty  and  satisfied  itself  about  the

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premises being adequately safe for those visiting the same.  

Reliance  in  support  of  the  submission  was  made  by  Mr.  

Jethmalani  upon  the  English  decisions  in  Green  v.  

Fibreglass  Ltd. 1958  (2)  QBD  245, Gee  v.  The  

Metropolitan Railway Company 1873 VIII Q.B. 161 and  

Grant v. Sun Shipping Co. Ltd. and Anr. 1948 AC 549.   

150. The second limb of Mr. Jethmalani’s contention was that  

having delegated their duties to persons like R.M. Puri whole-

time Director and the Managers employed for ensuring safety  

of those visiting the cinema, the Ansal brothers were entitled  

to assume that those incharge of their duties would faithfully  

and  effectively  discharge  the  same in  a  prudent  manner.  

The  employers  of  such  employees  could  not  be  held  

vicariously liable under the IPC for the failure of the latter to  

do  what  was  enjoined  upon  them in  terms  of  the  duties  

attached to their employment.  Support for that proposition  

was drawn by Mr. Jethmalani from the English decision in  

Hazeldine v. C.A. Daw and Son Ltd. and Ors. (1941) 2  

KB  343. The  third  limb of  the  argument  of  the  learned

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counsel  was  that  having  convicted  and  sentenced  the  

gatekeeper for the offence punishable under Section 304-A,  

the High Court  could not hold the Ansals guilty or  punish  

them for the same offence since there is no vicarious liability  

in criminal law.  

151. In  Gee  v.  The  Metropolitan  Railway  Company  

(supra),  a  train passenger  leant  on the  door of  a  railway  

carriage believing it to have been properly fastened, when in  

fact it was not. This resulted in the door flying open and the  

passenger getting thrown out of the carriage.  The question  

was whether there was any contributory negligence on the  

part  of  the  train  passenger.   The  Court  held  that  the  

passenger was entitled to assume that the door had been  

properly fastened and that the accident had been caused by  

the defendants’ negligence.  The Court observed:

“Because I am of opinion that any passenger in a   railway carriage, who rises for the purpose either of   looking  out  of  the  window,  or  dealing  with,  and   touching, and bringing his body in contact with the   door for any lawful purpose whatsoever, has a right   to  assume,  and  is  justified  in  assuming,  that  the   door is properly fastened; and if by reason of its not  

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being  properly  fastened  his  lawful  act  causes  the   door  to  fly  open,  the  accident  is  caused  by  the   defendants' negligence.”

152. The above decision was affirmed by the House of Lords  

in Grant v. Sun Shipping Co. Ltd. and Anr. (supra) where  

an  injury  was caused to  a  stevedore  on a  ship  when  he  

wrongly assumed that no hatch was left uncovered and unlit  

and therefore fell into the hatch.   The Court in that case also  

was concerned with the question of contributory negligence.  

It is noteworthy that the Court qualified the principle stated  

in  Gee  v.  The  Metropolitan  Railway  Company’s  case  

(supra) by holding that a prudent man would guard against  

the  possible  negligence  of  others  when  experience  shows  

such negligence to be common.    

153. In  Green v. Fibreglass Ltd.  (supra), a cleaning lady  

was injured due to faulty wiring on the premises where she  

was invited to work.  It was held that the occupiers of the  

premises should be taken to have discharged their duty to  

the  plaintiff  as  inviters  by  employing  competent  electrical

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contractors  and  by  taking  the  precaution  of  rewiring  the  

premises before they began to occupy the same.  If some act  

was to be performed which called for special knowledge and  

experience  which  the  inviter  could  not  be  expected  to  

possess, he fulfilled his duty of care by employing a qualified  

and reputable expert to do the work.   

154. It appears from a reading of the above cases that the  

principle that an occupier is entitled to assume that others  

have done their duty is applicable, provided that experience  

has  not  revealed  to  him that  the  negligence  of  others  is  

common, nor did he at any time have reason to believe that  

his premises was unsafe. It is difficult for the occupiers in the  

present  case  to  argue  that  they  did  not  have  reason  to  

believe that the premises was unsafe, given the occurrence  

of a similar fire in 1989, as well as the number of occasions  

on which defects in their premises had been pointed out to  

them.  Moreover, although Section 12 of the Cinematograph  

Act did require the licensing authority to take in to account  

substantial compliance with the rules, as well as existence of

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adequate safety precautions in the premises, Rule 10(1) of  

DCR,  1953  unambiguously  cast  the  responsibility  for  

maintaining such compliance and safety upon the occupier.  

The Act and Rules are silent regarding the consequences to  

be faced by a licensing authority who does not fulfill his duty,  

however,  Section  14 of  the  Cinematograph Act  imposes  a  

penalty on the occupier of a licensed premises who violates  

the conditions of the cinema license. One such condition in  

the present case was compliance with the First Schedule of  

the DCR, 1953. Therefore, this is not a situation where the  

law treats the occupier as an ignorant person who requires  

experts to verify the safety of his premises. Rather, the Act  

places  an  independent  obligation  upon  him  to  maintain  

compliance with the rules, irrespective of the assessment of  

the public authorities.

155. It is, therefore, difficult to accept the argument that the  

occupiers  in  the  present  case  blindly  accepted  the  

assessment of the inspecting and licensing authorities. If that

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were to be true, they ought not to have resisted the removal  

of 43 extra seats in the balcony as ordered by the licensing  

authority pursuant to the withdrawal of the 1976 notification,  

and they ought not to have failed to cure the defects in their  

premises  pointed  out  by  the  MCD after  the  inspection  in  

1983.   

156. Reliance  by  Mr.  Jethmalani  upon  the  decision  in  

Hazeldine’s case (supra) to support the second limb of his  

argument is also, in our view, misplaced.  That was a case,  

where  the  landlord  had  employed  a  firm  of  engineers  to  

adjust,  clean  and lubricate  the  machinery  of  the  lift  once  

every  month,  to  repack  the  glands  when  needed  and  to  

report to him if any repairs were needed.  An employee of  

the engineers engaged for the purpose repacked one of the  

glands but failed to replace it properly thereby causing the  

gland to fracture when the lift was worked and an accident in  

which  the  plaintiff  was  injured.   The  Court  held  that  the  

landlord  had  discharged  his  obligation  to  keep  the  lift  

reasonably safe by employing a competent firm of engineers.

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The owner of the lift was not, observed the Court, aware of  

any defect or danger in operating the lift.

157. The  fact  situation  in  the  case  at  hand  is  entirely  

different.  Here the duty to care for the safety of the invitees  

lies upon the occupiers not only under the common law but  

even under the statutory enactment.  More importantly, the  

occupiers have, as seen in the earlier parts of this judgment,  

been  aware  at  all  material  times,  of  the  statutory  

requirements and deviations which were repeatedly pointed  

out by the authorities concerned as a safety hazard for the  

patrons of the cinema theatre.  The staff employed by the  

occupiers  had no role to  play in these deviations or  their  

removal.   There  is nothing on record to suggest  that  the  

occupiers  had issued instructions to  the  staff  to  have the  

deviations and breaches removed and/or corrected, or that  

those  instructions  were  not  complied  with  by  the  latter  

resulting in the fire incident that claimed human lives.  Unlike  

in Hazeldine’s case (supra), the occupiers had not done all  

that could and ought to have been done by them to avert

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any tragedy in connection with the use of an unsafe premises  

frequented by the public for entertainment.  

158. Equally  untenable  is  the  argument  that  since  the  

gatekeeper  of  the  balcony  has  been  found  guilty  and  

sentenced to imprisonment, the occupiers must be held to be  

innocent.  The argument is an attempt to over-simplify the  

legal  position  ignoring  the  factual  matrix  in  which  the  

prosecution was launched and the appellants found guilty.  If  

the  appellants  have  indeed  committed  gross  negligence  

resulting in the death of a large number of innocents, they  

cannot argue that  just  because one of those found to be  

equally rash or negligent had been convicted for the very  

same offence they must be held to be not at fault.  

159. Mr.  Jethmalani  next  argued  that  the  charges  framed  

against the accused-appellants, Sushil and Gopal Ansal were  

defective inasmuch as the same did not specify the days or  

period when the offence took place nor  even indicate the  

statutory provisions, rules and regulations allegedly violated  

by  the  appellants  or  accuse  the  appellants  of  gross

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negligence  which  alone  could  constitute  an  offence  under  

Section  304A  IPC.  These  defects,  contended  the  learned  

counsel,  had  caused  prejudice  to  the  appellants  in  their  

defence  and  ought  to  vitiate  the  trial  and  result  in  their  

acquittal.  A similar contention, it appears, was urged by the  

appellants even before the High Court who has referred to  

the charges framed against the appellants at some length  

and discussed the law on the point by reference to Sections  

211, 215 and Section 464 of the Cr.P.C. to hold that the  

charges were reasonably clear and that no prejudice in any  

case  had  been  caused  to  the  appellants  to  warrant  

interference with the trial or the conviction of the appellants  

on that ground.  Reliance in support was placed by the High  

Court upon the decision of this Court in  Willie (William)  

Slaney v. State of Madhya Pradesh (AIR 1956 SC 116)  

and  several  later  decisions  that  have  reiterated  the  legal  

position on the subject.  There is in our opinion no error in  

the view taken by the High Court in this regard.  Section 464  

of the Cr.P.C. completely answers the contention urged on

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behalf of the appellants.  It in no uncertain terms provides  

that an error, omission or irregularity in the charge including  

any misjoinder of charges shall not invalidate any sentence  

or order passed by a Court of competent jurisdiction unless  

in the opinion of a Court of appeal, confirmation or revision a  

failure of justice has in fact been occasioned thereby.  The  

language employed in Section 464 is so plain that the same  

does not require any elaboration as to the approach to be  

adopted by the Court. Even so the pronouncements of this  

Court not only in Slaney’s case (supra) but in a long line of  

subsequent decisions place the matter  beyond the pale of  

any further deliberation on the subject.  See  K.C. Mathew  

v.  State  of  Travancore-Cochin  AIR  1956  SC  241,  

Gurbachan Singh v. State of Punjab AIR 1957 SC 823,  

Eirichh Bhuian v.  State of  Bihar AIR 1963 SC 1120,  

State of Maharashtra v. Ramdas Shrinivas Nayak AIR  

1982 SC 1249, Lallan Rai v. State of Bihar (2003) 1  

SCC 268  and  State (NCT of  Delhi) v.  Navjot Sandhu  

(2005) 11 SCC 600.

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160. In  Slaney’s case (supra) Vivian Bose, J. speaking for  

the Court observed:

“5...What it narrows down to is this. Is the charge to   be regarded as a ritualistic  formula so sacred and   fundamental  that  a  total  absence  of  one,  or  any   departure  in  it  from  the  strict  and  technical   requirements of the Code, is so vital as to cut at the   root of the trial and vitiate it from the start, or is it   one of many regulations designed to ensure a fair   and proper trial so that substantial, as opposed to   purely  technical,  compliance  with  the  spirit  and   requirements of the Code in this behalf is enough to   cure departures from the strict letter of the law ?

6.  Before  we  proceed  to  set  out  our  answer  and   examine the provisions of the Code, we will pause to   observe that the Code is a code of procedure and,   like all  procedural  laws, is  designed to further the  ends  of  justice  and  not  to  frustrate  them by  the   introduction of endless technicalities. The object of   the Code is to ensure that an accused person gets a   full and fair trial along certain well-established and  well-understood lines that accord with our notions of   natural  justice.  If  he  does,  if  he  is  tried  by  a   competent  court,  if  he  is  told  and  clearly   understands the nature of the offence for which he   is being tried, if  the case against him is fully and   fairly explained to him and he is afforded a full and   fair opportunity of defending himself, then, provided   there  is  substantial  compliance  with  the  outward   forms of the law, mere mistakes in procedure, mere   inconsequential errors and omissions in the trial are   regarded as venal by the Code and the trial is not   vitiated  unless  the  accused  can  show  substantial   prejudice.  That,  broadly  speaking,  is  the  basic   principle on which the Code is based...”

161. To the same effect are the subsequent decisions of this  

Court to which we have referred to above.  Applying the test

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laid down in the said cases we have no hesitation in holding  

that  there  was  nothing  fundamentally  wrong  with  the  

charges  framed  against  the  appellants  nor  have  the  

appellants been able to demonstrate that they suffered any  

prejudice on account of the alleged defects.  The High Court  

has in our opinion taken a correct view on the question urged  

before which does not call for any interference.   

162. It was also contended by Mr. Jethmalani that all such  

incriminating circumstances as have been used against the  

appellants were not put to the accused. The High Court has  

while  dealing  with  a  similar  contention  urged  before  it  

carefully examined the case of each appellant and found no  

merit in them.  That apart we have been taken through the  

statements made by the accused under Section 313 Cr.P.C.  

and  find  that  the  same  have  comprehensively  put  the  

circumstances appearing against the appellants to them and  

thereby  given  them an  opportunity  to  explain  the  same.  

Besides, so long as there is no prejudice demonstrated by  

the  appellants  on  account  of  any  deficiency  in  the

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statements, there is no question of this Court interfering with  

the concurrent judgments and orders of the Courts below.

163. We may at this stage simply refer to the decision of this  

Court in  Jai Dev v. State of Punjab AIR 1963 SC 612,  

where  P.B.  Gajendragadkar,  J.  (as  His  Lordship  then  was)  

speaking  for  a  three-Judge  Bench  explained  the  purpose  

underlying the statement  under  Section 342 (now Section  

313 Cr.P.C.) in the following words:

“The ultimate test in determining whether or not the   accused has been fairly examined under Section 342  would be to enquire whether, having regard to all   the questions put to him, he did get an opportunity   to  say  what  he  wanted  to  say  in  respect  of   prosecution case against him.  If it appears that the   examination  of  the  accused  person  was  defective   and thereby a prejudice has been caused to him,   that would no doubt be a serious infirmity.”

164.  We  may  also  refer  to  the  decision  of  this  Court  in  

Shivaji  Sahabrao  Bobade  v.  State  of  Maharashtra  

(1973)  2  SCC  793,  where  this  Court  declared  that  an  

omission in the statement under Section 313 does not ipso  

facto  vitiate the proceedings and that prejudice occasioned

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by such defect  must  be  established by the  accused.  The  

following passage is in this regard apposite:

“It is trite law, nevertheless fundamental, that the   prisoner’s  attention  should  be  drawn  to  every   inculpatory material so as to enable him to explain   it.  This is the basic fairness of a criminal trial and   failures in this area may gravely imperil the validity   of  the  trial  itself,  if  consequential  miscarriage  of   justice  has  flowed.   However,  where  such  an   omission has occurred it does not ipso facto vitiate   the proceedings and prejudice occasioned by such   defect must be established by the accused.  In the   event of evidentiary material not being put to the   accused,  the  court  must  ordinarily  eschew  such   material from consideration. It is also open to the   appellate  court  to  call  upon  the  counsel  for  the   accused to show what explanation the accused has   as  regards  the  circumstances  established  against   him but not put to him and if the accused is unable   to  offer  the  appellate  court  any  plausible  or   reasonable explanation of  such circumstances,  the   Court may assume that no acceptable answer exists   and that even if the accused had been questioned at   the proper time in the trial court he would not have   been able to furnish any good ground to get out of   the circumstances on which the trial court had relied   for its conviction. In such a case, the Court proceeds   on the footing that though a grave irregularity has   occurred  as  regards  compliance  with  Section  342   Cr.P.C. the omission has not been shown to have   been caused prejudice to the accused.”                 

165. To the same effect is the decision of this Court in State  

(Delhi  Admn.) v.  Dharampal (2001) 10 SCC 372  and  

Bakhshish Singh v. State of Punjab AIR 1967 SC 752.

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166.  Suffice  it  to  say  that  the  circumstances  appearing  

against the accused persons have been elaborately put to  

them  under  Section  313  Cr.P.C.  The  contention  that  the  

appellants  suffered  any  prejudice  on  account  of  a  given  

circumstance not having put to them has, in our opinion, no  

merit and is accordingly rejected.     

166. In the light of the above discussion, we see no reason  

to interfere  with the judgments and orders of the Courts  

below in so far as the same have convicted appellant-Ansal  

brothers for offences under Sections 304A, 337, 338 read  

with Section 36 IPC and Section 14 of the Cinematograph  

Act, 1952.   

167. As regards the conviction of Divisional Fire Officer, H. S.  

Panwar (A15) assailed in Criminal Appeal No.599/2010, the  

trial Court has on a reappraisal of the evidence adduced at  

the trial found that the said accused had acted in a grossly  

rash  and  negligent  manner  in  issuing  No  Objection  

Certificates without carrying out a proper inspection of the  

cinema hall from the fire safety angle, resulting in issue of

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temporary  permits  in  favour  of  the  theatre  which directly  

resulted  in  the  death  of  59  persons  in  the  incident  in  

question.  The trial Court observed:

“Accused H.S. Panwar acted with gross negligence   by recommending ‘No Objection certificate’ without   fulfilling  requirements  of  law and without  carrying   out inspection of the cinema hall building from fire   safety  point  of  view,  resulting  in  the  issuance  of   temporary  permits  and  on  the  basis  of  the  same   exhibition  of  films,  which  action  resulted  into  the   death of the patrons inside the cinema hall on the   day of the incident.  The accused committed breach  of duty by omitting to point out the fire hazards and   deficiencies in fire fighting measures in the cinema   building, which act amounts to culpable negligence   on  his  part.   The  act  of  accused  can  also  be   described  as  ‘culpable  rashness’  since  being  an   officer from the office of Chief Fire Officer, he was   conscious  that  the  intended  consequences  would   surely ensure.   The accused by, omitting to do his   lawful  duties  committed  gross  negligence  and   rashness which was the direct and proximate cause  of  the  death  of  59  persons.   Accordingly,  the   accused H.S. Panwar is held guilty  for the offence   under Section 304A IPC read with section 36 IPC.   The accused is also held guilty for the injury to the   patrons  in  the  cinema  hall  for  the  offence  under   section 337 and 338 IPC.”

                                            (emphasis supplied)

168. The above finding was affirmed by the High Court in the  

following words with a reduction in his sentence:  

“…  Concerning accused H.S. Panwar, the negligent   and careless inspection carried out by him has been  

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held  to  be  a  significant  and  direct  cause  of  the   accident, which took away lives of innocent people,   and grievously injured several others.  His vigil could   have prevented the fire clearance certificate.  If he   had  displayed  the  same  zeal  that  he  did  in   November, 1996, when the inspection report did not   yield a no objection?  (sic) There would have been a   greater scrutiny of the fire safety norms.  Instead,   he  certified  that  fire  safety  norms  had  been   complied with, whereas in actuality they were not.   No doubt, he has served the Delhi Fire Service for a   long time; according to the trial court judgment, he   was  68  years  when  the  impugned  judgment  was  pronounced.   He  is  also  a  recipient  of   commendations.   On  a  conspectus  of  all  these   circumstances, the court is of the opinion that ends   of justice would be served if the sentence is reduced   to  rigorous  imprisonment  for  one  year  and  Rs.5000/-  under  section  304-A.   The  default   sentence  in  his  case  is  also  modified  to  simple   imprisonment  for  two months.   The  conviction  by   the  trial  court  is  therefore  maintained  and to  the   above extent….”

169. Mr.  Mehrotra,  learned  counsel  for  the  appellant  H.S.  

Panwar made a two-fold submission in support of his appeal.  

Firstly  he  argued  that  according  to  the  standard  practice  

prevalent in the Fire Department the appellant H.S. Panwar  

then Divisional Fire Officer was required to give a report in  

terms of the proforma prescribed for the purpose.  This was  

according to the learned counsel evident from the deposition  

of Shri G.D. Verma (PW 37) the then Chief Fire Officer.  He

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urged that even earlier inspections had been made on the  

basis of the very same proforma, which was correctly filled  

up  by  the  appellant  furnishing  the  requisite  information  

demanded in the proforma.

170. Secondly it  was contended by Mr.  Mehrotra  that  the  

Victims’  Association  had  claimed  compensation  from  the  

management  of  the  theatre  as  well  as  MCD  Delhi  Fire  

Service, in which case the High Court had exonerated Delhi  

Fire Service.  That finding had attained finality as the same  

was  not  challenged  by  the  Association.  This,  argued  the  

learned counsel, implied that the Fire Service or its officers  

were  not  at  fault  for  the  occurrence  in  question,  a  

circumstance which could and ought to be kept in view.   

171. There is, in our opinion, no merit in either one of the  

submissions made by Mr.  Mehrotra.  Clearance by the Fire  

Department  was,  it  is  common ground,  an  essential  pre-

requisite for the grant of a license, its renewal or the issue of  

a temporary permit for exhibition of the films in any cinema  

hall.  This  clearance  could  be  granted  only  if  the  officers

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concerned  were  fully  satisfied  after  an  inspection  of  the  

cinema premises that the same was indeed safe for use  as a  

place for exhibition of cinematographs. Anyone discharging  

that important function had to be extremely vigilant as, any  

neglect  on his  part  could allow an unsafe  premises  being  

used  resulting  in  serious  consequences  as  in  the  present  

case.   Far  from  being  vigilant  and  careful  about  the  

inspection, H.S. Panwar grossly neglected the duty cast upon  

him,  resulting  in  the  issue  of  temporary  permits,  which  

contributed to the causa causans of the incident. It is in the  

circumstances no defence for the appellant-H.S. Panwar to  

plead  that  he  was  asked  to  report  only  according  to  the  

proforma  furnished  to  him.  As  a  senior  and  experienced  

officer  in  the  Fire  Service  Department,  he  ought  to  have  

known the purpose of his inspection and the care he was  

required to take in the interest of the safety of hundreds, if  

not thousands of cine-goers who throng to such public places  

for  entertainment.  In as much as he failed to do so, and  

issued  a  certificate  which  compromised  the  safety

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requirements and endangered human lives resulting directly  

in the loss of a large number of them, he has been rightly  

found guilty.

172. So also the second limb of Mr. Mehrotra’s submission is  

in our opinion without any substance.  The question whether  

the appellant H.S. Panwar was grossly negligent resulting in  

the loss of valuable human lives has to be determined on the  

basis of the evidence on record in the present case and not  

on the basis of findings which the High Court may have held  

in a summary proceedings for payment of compensation to  

the victims and their families recorded under Article 226 of  

the constitution.  The evidence in the case at hand has been  

appraised by the two Courts below and found to establish the  

charge of negligence against the appellant.  There is, in our  

opinion, no compelling reason for us to take a different view  

in the matter especially when we do not see any miscarriage  

of justice or perversity in the reasoning adopted by the trial  

Court and the High Court.      

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173. It  brings us to Criminal Appeals No.617-627 of 2010  

and 604 of 2010 filed by B.M. Satija (A-9) and Bir Singh (A-

11) respectively. They were together with A.K. Gera (A-10)  

charged  with  commission  of  offences  punishable  under  

Sections  304  read  with  Section  36  of  the  IPC.   The  trial  

Court, as already noticed in the earlier part of this judgment,  

held all the three accused persons mentioned above guilty of  

the  offence  with  which they  were  charged and sentenced  

them to undergo rigorous imprisonment for a period of seven  

years  besides  a  fine  of  Rs.5000/-  and  six  months  

imprisonment  in  default.  In  criminal  appeals  filed  by  the  

three  accused persons,  the  High Court  has converted  the  

conviction from Section 304 Part II to Sections 304A, 337  

and 338 read with Section 36 of the IPC in so far as B.M.  

Satija  (A-9)  and  Bir  Singh  (A-11)  are  concerned,  while  

acquitting A.K. Gera (A-10) of the charge. The High Court  

has further reduced the sentence awarded to the appellants  

B.M.  Satija  (A-9)  and  Bir  Singh  (A-11)  from seven  years  

rigorous imprisonment to two years and a fine of Rs.2000/-

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each  for  the  offence  under  Section  304-A,  rigorous  

imprisonment for six months with fine of Rs.500/- for the  

offence under Section 337, IPC and rigorous imprisonment  

for one year, with fine of Rs.1000/- for the offence under  

Section 338, IPC.  While appellants B.M. Satija (A-9) and Bir  

Singh  (A-11)  have  assailed  their  conviction  and  sentence  

before us, the CBI has challenged the acquittal of A.K. Gera  

(A-10) in Criminal Appeals No.605-616 of 2010.

174. Appearing  for  appellant-B.M.  Satija,  Mr.  V.V.  Giri,  

learned senior counsel argued that the appellant was not one  

of  those  deputed  to  attend  to  the  complaint  about  the  

malfunctioning of the  DVB transformer  on the  morning of  

13th June, 1997.  He submitted that evidence adduced by the  

prosecution regarding his presence and association with the  

process of rectification was sketchy and did not prove beyond  

a reasonable doubt his presence on the spot.  He made an  

attempt to persuade us to reverse the concurrent findings of  

fact recorded by two Courts below in this regard and drew  

our attention to the depositions of P.C. Bhardwaj (PW-40),

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V.K Gupta (PW-43) and Bhagwandeen (PW-44) as also the  

documents marked Ex. PW-40/C, 40/A and 40/P.  He urged  

that  the  CFSL  report  recording  the  signatures  sent  for  

examination  did  not  lend  any  support  to  the  prosecution  

case.

175. Mr.  Gopal  Singh,  Senior  Counsel  appearing  for  A.K.  

Gera (A-9) respondent in CBI’s Criminal Appeal No.605-616  

of 2010 contended that the order passed by the High Court  

was based on appreciation of the evidence adduced by the  

trial  Court  and  that  interference  with  any  such  order  of  

acquittal is rare unless it is found to be patently perverse.  

He urged that his client A.K. Gera (A-9) was not posted in  

the  concerned  zone  in  which  the  DVB  transformer  was  

installed.  He had nothing to do with this act.  The trial Court  

and the  High Court  have both  concurrently  held  that  the  

repairs of the DVB transformer were carried out by Bir Singh  

(A-11) and B.M. Satija A(-9).  That finding is without any  

perversity.  The High Court has relying upon the depositions

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of  P.C.  Bhardwaj  (PW-40)  and  Bhagwandeen  (PW-44)  

observed:

“14.12 So far as role of the accused B.M. Satija   and Bir Singh are concerned, PW-40 P.C. Bhardwaj   deposed  having  informed  B.M.  Satija  about  the   morning complaint.  PW-44 deposed that all 3, i.e.,   Gera,  Satija  and  Bir  Singh  were  instrumental  in   repairing of the DVB transformer at Uphaar in the   morning of 13.6.1997.  Expert evidence in the form   of  PW-35/A;  Ex.PW36/A  all  established  that  the   cause of fire was improper crimping of the cable end   with  the  socket  which  ultimately  detached  at  the   crucial  time,  resulted  in  intense  sparking,  settling   down of the cable on the transformer which resulted   in a slit; transformer oil gushed out, caught fire and   spread  to  the  parking  area  resulting  in  the   improperly parked vehicles catching fire.

14.13 xxxxx

14.14 The  depositions  of  other  witnesses   assume importance.  PW-40 clearly mentioned that   he  had  discussed  the  complaint  with  Satija  and  chalked out the programme.  PW/44 clearly deposed   having accompanied Satija,  Bir  Singh and Gera to   the relevant site at Uphar and witnessing the repairs   with the aid of dye and hammer.  At one place, he   mentioned  that  Bir  Singh  carried  out  the  repair   under the supervision of both the officers, in another   place  of  his  deposition,  he  mentioned  that  Bir   Singh’s work was supervised by Satija.”

176. The above findings do not in our view suffer from any  

perversity  or  any  miscarriage  of  justice  or  call  for  

interference  under  appeal  in  this  connection  under  Article  

136 of the Constitution of India.  Even in regard to A.K. Gera

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(A-9), the High Court has held that he was present on the  

spot but in the absence of any further evidence to prove the  

role played by him, the High Court considered it unsafe to  

convict him for imprisonment:    

“On an overall  conspectus of the above facts, this   Court is of opinion that though Gera’s presence at   site  stands  established,  in  the  absence  of  fuller   evidence about the role played by him, there can be   no  presumption  that  he  played  any  part  in  the   defective repairs, carried out without the aid of the   crimping machine on the Uphaar DVB transformer.   Mere  presence  when  that  cannot  lead  to  presumption of involvement of an actor who is not   expected to play any role and is insufficient, in the   opinion of the Court,  to saddle criminal  liability  of   the  kind  envisioned  under   Section  304-A.   To   establish that Gera had a duty to care to ensure that   notwithstanding  the defective  crimping carried out   by the employees competent to do so and that he   had an overriding responsibility of objecting to the   work done by them, without proving whether he was   there during the entire operation and if so how the   extent of his involvement, the conviction for causing   death due to criminal negligence cannot be arrived   at.  Although, there are circumstances which point   to  Gera’s  presence,  they  may  even  amount  to   suspicion  of  the  role  played  by  him,  yet  such   evidence proved are insufficient  to prove the case   against  him  beyond  reasonable  doubt.   In  the   circumstances,  neither  can  be he  convicted  under   Section 304 Part-II, nor under Section 304-A read  with 337/338 and 36 IPC.”

177. In fairness to Mr. Salve, learned counsel appearing for  

the CBI, we must mention that he did not seriously assail the

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above reasoning given by the High Court.  At any rate, the  

view taken by the High Court is a possible view. We see no  

compelling reason to interfere with that view in the facts and  

circumstances  of  the  case.  Having  said  that,  the  question  

remains whether the High Court was justified in convicting  

appellants  Bir  Singh  (A-11)  and  B.M.  Satija  (A-9)  for  the  

offence of causing death by rashness and gross negligence,  

punishable under sections 304A of the IPC.   

178. In  our  view,  the  causa  causans for  the  death  of  59  

persons was their  inability to quickly exit from the balcony  

area for reasons we have already indicated. That being so,  

even when the repairs carried out by Bir Singh (A-11) and  

B.M. Satija (A-9) may have been found to be unsatisfactory  

for the reasons given by the trial Court and the High Court,  

which we have affirmed,  the  fire  resulting from such poor  

repair was no more than causa sine qua non for the deaths  

and, therefore, did not constitute an offence punishable under  

Section  304A  of  the  IPC.  Besides,  the  negligence  of  the  

occupiers  of  the  cinema  having  intervened  between  the

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negligence of these two officials of the DVB and the deaths  

that occurred in the incident, the causal connection between  

the deaths and act of shabby repair of the installation of the  

DVB transformer is not established directly.

179. The  conviction  of  these  two appellants  under  Section  

304A cannot, therefore, be sustained.  That would, however,  

not affect their conviction under Sections 337 and 338 read  

with Section 36 of the IPC which would remain unaffected and  

is hereby affirmed.

180. Question  No.1  is  accordingly  answered  on  the  above  

lines.

Re: Question No.II:

181. The charge framed against N.S. Chopra (A-6) and other  

Managers of Uphaar Cinema was one for commission of the  

offence  punishable  under  Section  304  Part  II  read  with  

Section  36  of  the  IPC.  The  allegation  made  against  the  

Managers  was that  even  when they  were  present  on the  

premises at the time of the incident, they had failed to either

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warn the patrons or facilitate their escape. They instead fled  

the scene despite the knowledge that death was likely to be  

caused by their acts of omission and commission.  The Trial  

Court  had  found  the  charge  proved  and  convicted  and  

sentenced N.S. Chopra to undergo imprisonment for a period  

of seven years besides a fine of Rs.5,000/- and imprisonment  

for  six  months  in  default  of  payment.  The  High  Court  

reversed that view  qua N.S. Chopra and also R.K. Sharma  

(A-5) (since deceased). The High Court acquitted them of the  

charges  for  reasons  which  it  summed up  in  the  following  

words:

“10.11  Section  304,  first  part  requires  proof  of   intention  to  cause  death  or  such  bodily  harm  as   would cause death; the second part requires proof   that knowledge existed that such injury would result   in death, or grievous injury likely to result in death.   The  crucial  aspect  in  both  cases,  is  the  state  of   mind,  i.e  “intention”  or  “knowledge”  of  the   consequence. Proof of such intention or knowledge   has  to  be  necessarily,  of  a  high  order;  all  other   hypotheses of innocence of the accused, have to be   ruled out.  The prosecution here,  glaringly  has not   proved  when  these  two  accused  fled  the  cinema   hall; there is no eyewitness testifying to their having   been in  the  balcony when the smoke entered the   hall,  and having left  it,  which could  have proved   knowledge of the likely deaths and grievous bodily  

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injuries. Thus, this court is of the opinion that proof   of  these  appellants,  i.e  N.S.  Chopra  and  R.K.   Sharma,  having  committed  the  offence  under   Section  304,  is  not  forthcoming.  Their  conviction   under  that  provision  cannot,  therefore,  be  sustained.”

(emphasis supplied)

182. The High Court also examined whether N.S. Chopra and  

R.K. Sharma could be convicted under Section 304A IPC, and  

answered that question in the negative.  The High Court was  

of the view that the prosecution had failed to establish that  

N.S.  Chopra was present  on the  scene and also that  the  

documentary evidence adduced at the trial proved that he  

had not reported for duty on the fateful day.  The High Court  

observed:

“10.13  As  far  as  R.  K.  Sharma is  concerned,  the   evidence establishes that he had reported for duty…   N.S. Chopra,  on the  other  hand,  according to the   documentary evidence (Ex. PW-108/DB-1, found in   Ex.PW97/C)  had  not  reported  for  duty.  In  his   statement under Section 313, he mentioned having   reached the cinema hall at 5-30 PM, and not being   allowed  inside,  since  the  fire  was  raging  in  the   building.

xx xx xx

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10.17  The  totality  of  the  above  circumstances  no   doubt  points  to  complete  managerial  and  supervisory failure in the cinema. Such inaction is   certainly culpable, and points to grave lapses. This   undoubtedly was an important and significant part of   the causation chain. Yet, to convict the accused R.K.   Sharma  and  N.C.  Chopra,  there  should  be  more   convincing  proof  of  involvement.  At  best,  there  is   evidence of suspicion of their involvement. Yet, no   attempt to prove that  they were present,  and did   not  take  any  effective  measures  to  evacuate  the   patrons, which they were bound to do, in the normal   course  of  their  duty,  has  been  made.  Mere  proof   that  these  accused  were  Assistant  Manager,  and  Manager, as on the date of the accident, and that   one of them had reported earlier, during the day, is   not  adequate  to prove that  they  caused death  by   criminally negligent, or rash act.  There was failure  on the part of the trial court to notice that the two   vital  aspects,  i.e  duty  and breach of  that  duty  of   such  scale,  as  to  amount  to  an  offence.  Their   appeals  are  entitled  to  succeed.  These  appellants   have  to,  therefore,  be  acquitted  of  the  charges.   Their conviction is consequently set aside.”

(emphasis supplied)

183. In fairness to Mr. Salve and Mr. Tulsi, we must say that  

no  serious  attempt  was  made  by  them  to  demolish  the  

reasoning  adopted  by  the  High  Court  in  coming  to  its  

conclusion.  That apart, the view taken by the High Court on  

a  fair  appreciation  of  the  evidence,  both  oral  and  

documentary,  does  not  even  otherwise  call  for  any  

interference by us as the same is a reasonably possible view.

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184. Coming then to the acquittal of S.S. Sharma (A-13) and  

N.D. Tiwari (A-14), Administrative Officers, MCD, the charges  

framed  against  the  said  two  accused  persons  were  for  

offences punishable under Section 304A, 337 and 338 read  

with Section 36 IPC. The allegation levelled against them was  

that  they  negligently  issued  No  Objection  certificates  to  

Uphaar Cinema in the years 1995-96 and 1996-97 without  

so  much  as  conducting  inspections  of  the  premises,  and  

thereby committed a breach of the Cinematograph Act and  

the  Rules  made  thereunder.   The  Trial  Court  found  that  

charge established and accordingly convicted and sentenced  

both  the  accused persons  to  undergo  imprisonment  for  a  

period of two years and a fine of Rs.5,000/- for the offence  

punishable under Section 304A, six months for the offence  

punishable under Section 337 and two years under Section  

338 of the Code. The High Court has in appeal reversed the  

conviction  and  the  sentences  awarded  to  the  accused  

persons on the reasoning that it summed up in the following  

words:

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“13.6  The  prosecution,  in  order  to  succeed  in  its   charge  of  accused  Mr.  S.S.  Sharma and  Mr.  N.D.   Tiwari  having  acted  with  criminal  negligence  and  caused death and serious injury, should have first   established  the  duty  of  care  either  through  some  enacted  law  like  DCR,  1953  or  DCR,  1981  or  a   general  duty discernable in their  normal course of   official functions. In addition, the prosecution should   have  established  breach  of  such  duty  would  have   resulted in a foreseeable damage and death to or in   grievous injury to several persons. Unlike in the case  of the Fire Department, the Licensing Department or   the Electrical Inspectorate, all  of whom are named   authorities  empowered  to  inspect  the  premises,   there is no role assigned to Administrative Officers   of  the  MCD.  The  rationale  for  obtaining  'no  objections'  from  these  officers  has  been  left   unexplained. The prosecution has failed to establish   the necessity for such No Objection Certificate and  how without such document, by the Administrative   Officers  of  MCD,  the  licensing  authority,  DCP   (Licensing)  would  not  have  issued  the  temporary   permit. Ex.  22/A,  the  letter  by  the  licensing   department  is  in  fact  addressed  to  the  Building   department, MCD.

xx xx xx  

13.8 The materials on record nowhere disclose how,   even if it were assumed that Mr. S.S. Sharma and  Mr.  N.D. Tiwari  breached their  duties  of  care,  the   breach  was  of  such  magnitude  as  would  have   inevitably led to death or grievous injury to several   persons and that such consequence was reasonably   foreseeable by them when they issued No Objection   Certificates. No doubt, the issuance of No Objection   Certificates  and  handing  them  over  to  the   beneficiary directly was a careless, even callous act.   It  was also used to be placed on the record as a   prelude to the issuance of the permits. But in the   absence of clearly discernable duty of care and the   magnitude of foreseeable damage by these accused,  

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this  Court  cannot  affirm  the  findings  of  the  Trial   Court and their conviction.

13.9 The appeals of Mr. S.S. Sharma and Mr. N.D.   Tiwari are, therefore, entitled to succeed.”

(emphasis supplied)  

185. There was no serious argument advanced by either Mr.  

Salve, appearing for the CBI or Mr.  Tulsi for assailing the  

correctness of the view taken by the High Court in appeal  

and rightly so because the High Court has, in our opinion,  

taken  a  fairly  reasonable  view  which  is  in  tune  with  the  

evidence on record. There is, in our opinion, no room for our  

interference even with this part of the order passed by the  

High  Court  by  which  it  acquitted  S.S.  Sharma  and  N.D.  

Tiwari, Administrative Officers of the MCD.  Our answer to  

Question No.II is in the affirmative.

Re: Question No.III:

186. The Trial Court had framed charges against the accused  

persons by an order dated 9th April, 2001 by which Sushil  

and Gopal Ansal were charged with commission of offence

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punishable  under  Section  304A,  337  and  338  read  with  

Section  36  IPC.   Against  that  order  framing  charges  the  

Association  of  Victims  of  Uphaar  Tragedy  (AVUT)  filed  

Criminal Revision No.270 of 2001 before the Delhi High Court  

to contend that a charge under Section 304 IPC also ought to  

have been framed against the said two accused persons. The  

case  of  the  association  was that  there  was overwhelming  

evidence on record to establish the charge.  That revision  

eventually failed and was dismissed by the High Court by its  

order dated 11th September, 2001 (Sushil Ansal v. State  

Through CBI etc. etc. 1995 (2002) DLT 623). Revision  

petitions filed by other accused persons against the order of  

framing charges were also dismissed by the High Court by  

the very same order.  Dealing with the contention urged on  

behalf of the AVUT the High Court observed:

“34.  The  plea  of  Association  of  Victims  of  Uphaar   Tragedy  to  frame  charges  under  Section  304  IPC  against accused Sh. Sushil Ansal and Sh. Gopal Ansal,   in  addition  to  the  charges  already  framed  against   them, cannot be sustained in as much as prima facie a   case of negligence only is made out against them. The   allegations  against  them  gross  negligence,  wanton   carelessness and callous indifference in regard to the   up-keep  and  maintenance  of  the  cinema.  Had  rapid  

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dispersal facilities been available to the patrons in the   balcony, no death or injury could have taken place and   as such, this Court is of the considered view that there   are  no  good  and  sufficient  grounds  for  slapping  a   charge  under  Section  304  IPC  against  these  two  accused.”

187. What is significant is that AVUT did not bring up the  

matter to this Court against the above order passed by the  

High Court. On the contrary, Sushil Ansal appears to have  

filed a  special  leave  petition  in  this  Court  challenging the  

dismissal of the revision petition by the High Court which was  

subsequently dismissed as withdrawn by this Court by order  

dated  12th April,  2002.   The  result  was  that  the  trial  

commenced against the Ansal brothers on the basis of the  

charges framed by the Trial Court.   

188. The AVUT during the course of the trial made another  

attempt to have the charge under Section 304 IPC framed  

against the Ansal brothers by moving an application before  

the  Trial  Court  to  that  effect.  The  Trial  Court,  however,  

disposed of that application stating that if it found sufficient  

evidence against the Ansal brothers justifying a charge under

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Section 304 IPC or any other person for that matter, it would  

take  action  suo  moto for  framing  such  a  charge.  Final  

judgment of the Trial Court was delivered on 20th November,  

2007  in  which  it  convicted  Ansal  brothers  of  the  offence  

under Section 304A of the IPC, which clearly meant that the  

Trial Court had not found any reason to frame any additional  

charge against them under Section 304 IPC.   

189. Aggrieved by the omission of the Trial Court to frame a  

charge under Section 304 IPC, AVUT filed a revision petition  

before the High Court which too was dismissed by the High  

Court with the observation that their earlier revision petition  

framing charges under Sections 304, 337 and 338 read with  

Section 36 having been dismissed by the High Court, the said  

order had become final, especially when the revisionist AVUT  

did not carry the matter further to this Court. The High Court  

also held that the appeal against the conviction of the Ansal  

brothers having been disposed of, there was no question of  

framing any charge for a graver offence in the absence of  

any evidence unequivocally establishing that such a charge

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was made out and yet had not been framed.  The High Court  

held that procedure for misjoinder of charges under Section  

216  applied  during the  stage  of  trial,  whereas  AVUT was  

asking for a remand of the matter for a retrial on the fresh  

charge under Section 304 Part II, which was not permissible  

under the scheme of the Code. The High Court also rejected  

the contention that Ansal brothers could be convicted for an  

offence graver than what they were charged with.

190. In the appeal filed by AVUT against the order passed by  

the  High  Court  in  the  above  revision  petition,  they  have  

agitated the very same issue before us.  Appearing for the  

Victims  Association,  Mr.  Tulsi  argued  that  the  acts  of  

omission  and  commission  of  Ansal  brothers  by  which  the  

egress of the patrons was obstructed warranted a conviction  

not merely for the offence punishable under Section 304A  

IPC but also for the offence punishable under Section 304  

Part II since according to the learned counsel the said acts  

were committed with the knowledge that death was likely to  

result thereby.  Mr. Tulsi in particular contended that the act

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of  installing an  eight-seater  box that  entirely  blocked the  

right-side  exit  in  the  balcony  was  itself  sufficient  for  the  

Court  to  order  a  retrial  of  the  Ansal  brothers,  since  they  

knew by such an act they were likely to cause death of the  

patrons in the event of a fire incident. On that premise, he  

contended that the matter should be remanded back to the  

Trial  Court  for  retrial  for  commission  of  the  offence  

punishable  under  Section  304  Part  II.  In  support  of  the  

contention  that  the  fact  situation  in  the  case  at  hand  

established a case under Section 304 Part II, Mr. Tulsi placed  

reliance on the decision of this Court in  Alister Anthony  

Pereira  v.  State  of  Maharashtra  (2012)  2  SCC  648  

where  this  Court  was  dealing  with  an  inebriated  driver,  

driving under the influence of alcohol causing the death of  

people on the footpath.  He contended that this Court had in  

that fact situation held that by driving recklessly under the  

influence of alcohol the driver knew that he can thereby kill  

someone.  Anyone causing death must be deemed to have

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had the knowledge that his act of omission and commission  

was likely to result in the loss of human lives.  

191. Mr. Ram Jethmalani, learned counsel for Ansal brothers  

on the other hand placed reliance upon the decision of this  

Court in Keshub Mahindra v. State of M.P. (1996) 6 SCC  

129 and argued that a case where a person in a drunken  

state  of  mind  drives  a  vehicle  recklessly  is  completely  

distinguishable  from  the  case  at  hand  and  that  the  fact  

situations are not comparable in the least.  On the contrary  

in the case of  Keshub Mahindra (supra), this  Court  has  

clearly repelled the contention that the charge under Section  

304 Part II would be maintained against those handling the  

plant  from which the  lethal  MIC gas had leaked to  cause  

what is known as the infamous Bhopal Gas Tragedy in which  

thousands of human beings lost their lives.  If this Court did  

not find a case under Section 304 Part II made out in a case  

where the tragedy had left thousands dead, the question of  

the present unfortunate incident being treated as one under  

Section 304 Part II did not arise, contended Mr. Jethmalani.

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192.  In  Alister  Anthony  Pereira’s  case  (supra),  the  

accused was driving in an inebriated condition when he ran  

over a number of labourers sleeping on the pavement, killing  

seven of them.  The Trial Court convicted the accused under  

Sections 304A and 337 IPC but acquitted him under Section  

304 Part II and 338 IPC. The Bombay High Court set aside  

the acquittal and convicted the accused for offences under  

Sections 304 Part II, 337 and 338 IPC.  This Court affirmed  

the  said  judgment  of  the  High  Court  and  while  doing  so  

explained the distinction between the offence under Section  

304A and that punishable under Section 304 Part II IPC. This  

Court observed:

“47. Each case obviously has to be decided on its   own facts. In a case where negligence or rashness is   the  cause  of  death  and  nothing  more,   Section 304A may be attracted but where the rash   or negligent act is preceded with the knowledge that   such act is likely to cause death, Section 304 Part II  Indian Penal Code may be attracted and if such a   rash and negligent act is preceded by real intention   on  the  part  of  the  wrong  doer  to  cause  death,   offence may be punishable under Section 302 Indian  Penal Code.”

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193. This  Court  went  on  to  hold  that  the  accused  in  the  

above case could be said to have had the knowledge that his  

act of reckless driving in an inebriated condition was likely to  

cause death. This Court observed:

“41. Rash or negligent driving on a public road with   the knowledge of the dangerous character and the   likely effect of the act and resulting in death may   fall  in  the  category  of  culpable  homicide  not   amounting to murder. A person, doing an act of rash   or  negligent  driving,  if  aware  of  a  risk  that  a   particular  consequence  is  likely  to  result  and that   result occurs, may be held guilty not only of the act   but also of the result. As a matter of law - in view of   the provisions of the Indian Penal Code - the cases   which fall within last clause of Section 299 but not  within clause 'fourthly' of Section 300 may cover the  cases  of  rash  or  negligent  act  done  with  the   knowledge  of  the  likelihood  of  its  dangerous   consequences  and  may  entail  punishment  under   Section 304 Part  II  Indian  Penal  Code.   Section 304A Indian  Penal  Code  takes  out  of  its   ambit the cases of death of any person by doing any   rash  or  negligent  act  amounting  to  culpable   homicide of either description.

xx xx xx

78. We have also carefully considered the evidence   let  in by prosecution - the substance of which has   been referred to above - and we find no justifiable   ground to take a view different from that of the High   Court.  We  agree  with  the  conclusions  of  the  High   Court  and  have  no  hesitation  in  holding  that  the   evidence  and  materials  on  record  prove  beyond  reasonable doubt that the Appellant can be attributed   with knowledge that his act of driving the vehicle at   a high speed in the rash or negligent  manner was   dangerous  enough  and  he  knew  that  one  result   would very likely be that people who were asleep on  

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the pavement may be hit, should the vehicle go out   of control.”

(emphasis supplied)

194. In State through PS Lodhi Colony, New Delhi v.   

Sanjeev Nanda  (2012) 8 SCC 450, six bystanders were  

killed  when  the  accused,  driving  recklessly  under  the  

influence of alcohol ran them over.  The accused was also  

shown to have gotten out of the vehicle after the incident,  

inspected the gruesome damage and thereafter driven away.  

While the trial  Court  convicted the  accused under  Section  

304 Part II, IPC, the Delhi High Court altered the conviction  

to one under Section 304A on the ground that knowledge of  

causing death  was not  made  out.  This  Court  allowed the  

appeal against this decision and held the offence of culpable  

homicide not amounting to murder to have been made out.  

The reasoning behind the Court’s conclusion that the accused  

had the knowledge that death was likely to be caused was  

based on the facts of the case and the presumption that was  

drawn in Alister Anthony (supra) against drunken drivers in

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hit and run cases.   K.S.P. Radhakrishnan, J. speaking for  

this Court observed as follows:

“The  principle  mentioned  by  this  Court  in Alister  Anthony Pereira (supra) indicates that the person  must be presumed to have had the knowledge that,   his act of driving the vehicle without a licence in a   high  speed  after  consuming  liquor  beyond  the   permissible  limit,  is  likely  or  sufficient  in  the   ordinary  course  of  nature  to  cause  death  of  the   pedestrians  on  the  road.  In  our  view, Alister  Anthony  Pareira (supra)  judgment  calls  for  no  reconsideration. Assuming that Shri Ram Jethmalani   is right in contending that while he was driving the   vehicle in a drunken state, he had no intention or   knowledge that his action was likely to cause death   of  six  human  beings,  in  our  view,  at  least,   immediately after having hit so many human beings   and  the  bodies  scattered  around,  he  had  the   knowledge that his action was likely to cause death   of  so  many  human  beings,  lying  on  the  road  unattended. To say, still he had no knowledge about   his action is too childish which no reasonable man   can accept as worthy of consideration. So far as this   case  is  concerned,  it  has  been  brought  out  in   evidence  that  the  accused  was  in  an  inebriated   state,  after  consuming  excessive  alcohol,  he  was   driving  the  vehicle  without  licence,  in  a  rash  and   negligent manner in a high speed which resulted in   the death of six persons. The accused had sufficient   knowledge that his action was likely to cause death   and  such  an  action  would,  in  the  facts  and   circumstances of this case fall under Section 304(II)   of  the  Indian  Penal  Code  and  the  trial  court  has   rightly held so and the High Court has committed an   error in converting the offence to Section 304A of   the Indian Penal Code.”

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195. What emerges from the two cases referred to above is  

that:

a. Each case must be decided on its own facts  to determine whether such knowledge did in  fact precede the rash/negligent act.

b. What  converts  a  case  apparently  falling  under Section 304A into one under Section  304 Part II is the knowledge that the  act is  likely to cause death”.

c.  Where the act which causes death is the  act  of  driving a  vehicle  in  a  rash  and reckless  manner  and  in  an  inebriated  state  after  consuming liquor, the accused may be attributed  the knowledge that such act was likely to cause  death of others using the road.

196. The  decision  in  Alister  Anthony  Pereira's  case  

(supra) or that delivered in Sanjeev Nanda’s case (supra)  

does not lay down any specific test for determining whether  

the accused had the knowledge that  his  act  was likely to  

cause death.   The  decisions simply accept the proposition  

that  drunken  driving  in  an  inebriated  state,  under  the  

influence of alcohol would give rise to an inference that the  

person so driving had the knowledge that his act was likely to  

cause death.  The fact situation in the case at hand is not

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comparable  to  a  case  of  drunken driving in  an inebriated  

state.  The case at hand is more akin on facts to  Keshub  

Mahindra’s case (supra) where this Court was dealing with  

the question whether a case under Section 304 part II was  

made out against the management of Union Carbide India  

Ltd., whose negligence had resulted in highly toxic MIC gas  

escaping from the plant at Bhopal. The trial Court in that  

case had framed a charge against the management of the  

company for  commission of  an offence under  Section 304  

Part II, IPC, which was upheld by the High Court in revision.  

This Court, however, set aside the order framing the charge  

under  Section  304  Part  II  and  directed  that  charges  be  

framed  under  Section  304A,  IPC  instead.  This  Court  

observed:

“20…The entire material which the prosecution relied   upon before the Trail Court for framing the charge   and to  which  we have  made  a detailed  reference   earlier, in our view, cannot support such a charge   unless it  indicates prima facie  that on that fateful   night when the plant was run at Bhopal it was run   by the concerned accused with the knowledge that   such running of the plant was likely to cause deaths   of human beings. It cannot be disputed that mere   act of running a plant as per the permission granted   by the authorities would not be a criminal act. Even  

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assuming that it  was a defective plant and it  was   dealing with a very toxic and hazardous substance   like MIC the mere act of storing such a material by   the accused in Tank No. 610 could not even prima   facie  suggest  that  the  concerned  accused  thereby   had knowledge that they were likely to cause death   of human beings. In fairness to the prosecution it   was not suggested and could not be suggested that   the  accused  had  an  intention  to  kill  any  human   being  while  operating  the  plant.  Similarly  on  the  aforesaid material placed on record it could not be  even prima facie suggested by the prosecution that   any  of  the  accused  had  a  knowledge  that  by   operating  the  plant  on  that  fateful  night  whereat   such  dangerous  and  highly  volatile  substance  like   MIC was stored they had the knowledge that by this   very act itself they were likely to cause death of any   human  being.  Consequently  in  our  view  taking  entire  material  as  aforesaid  on its  face  value  and  assuming it to represent the correct factual position   in  connection  with  the  operation  of  the  plant  at   Bhopal on that fateful night it could not be said that   the said material even prima facie called for framing   of  a  charge  against  the  concerned  accused  under   Section 304 Part  II,  IPC on the specious  plea that   the  said act  of  the accused amounted to culpable   homicide only because the operation of the plant on   that night ultimately resulted in deaths of a number   of human beings and cattle…”

(emphasis supplied)

197. At the same time, the Court held that there was enough  

evidence  to  prima  facie  establish  that  the  accused  

management had committed an offence under Section 304A  

and  observed  that  the  evidence  assembled  by  the  

prosecution suggested that structural and operational defects

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in  the  working of the plant  was the direct  and proximate  

cause of death:

“21…  It  cannot  be  disputed  that  because  of  the   operation of the defective  plant at  Bhopal on that   fateful  night  a  highly  dangerous  and  volatile   substance like MIC got converted into poisonous gas  which snuffed off the lives of thousands of human   beings  and  maimed  other  thousands  and  killed   number of animals and that all happened, as seen at   least  prima  facie  by  the  material  led  by  the   prosecution  on  record,  because  of  rash  and  negligent act on the part of the accused who were   in-charge  of  the  plant  at  Bhopal.  Even  though,   therefore,  these  accused  cannot  be  charged  for   offences under Section 304 Part II the material led  against them by the prosecution at least prima facie   showed  that  the  accused  were  guilty  of  rash  or   negligent acts not amounting to culpable homicide   and by that  act  caused death  of  large number of   persons… In this connection we must observe that   the  material  led  by  the  prosecution  to  which  we  have made a detailed reference earlier prima facie   shows  that  there  were  not  only  structural  defects   but even operational defects in the working of the   plant on that fateful  night which resulted into this   grim tragedy.  Consequently  a  prima  facie  case  is   made  out  for  framing  charges  under   Section 304A against the concerned accused…”

198. It is noteworthy that an attempt was made by the CBI  

and  State  of  Madhya  Pradesh  to  have  the  above  order  

recalled and set aside by way of a curative petition which  

failed with the dismissal of the petition by a five-Judge Bench

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of  this  Court  (See  C.B.I.  and  Ors.  etc.  v.  Keshub  

Mahindra etc. (2011) 6 SCC 216).

199. We may at this stage refer to Section 464 of the Code  

of  Criminal  Procedure  which  deals  with  the  effect  of  the  

omission to frame or absence of, or error in the framing of  

charge and inter-alia provides that no finding, sentence or  

order by a Court of competent jurisdiction shall be deemed  

invalid merely on the ground that no charge was framed or  

on the ground of any error, omission or irregularity in the  

charge including any misjoinder of charges,  unless,  in the  

opinion of the Court of appeal,  confirmation or revision, a  

failure of justice has in fact been occasioned thereby. It is  

only  if  the  Court  of  appeal,  confirmation  or  revision is  of  

opinion that a failure of justice has in fact been occasioned  

that it may in the case of an omission to frame a charge,  

order  that  a  charge  be  framed  and  that  the  trial  be  

recommenced from the point immediately after the framing  

of the charge.  The omission to frame a charge is, therefore,  

by itself not enough for the Court of appeal, confirmation or

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revision  to  direct  the  framing  of  the  charge.   What  is  

essential for doing so is that the Court of appeal in revision  

or  confirmation  must  record  a  finding  to  the  effect  that  

failure of justice has in fact been occasioned on account of  

the non-framing of charge.

200. The  expression  ‘failure  of  justice’  is  not  defined,  no  

matter the expression is very often used in the realm of both  

civil  and  criminal  jurisprudence.  In  Shamnsaheb  M.  

Multtani v. State of Karnataka (2001) 2 SCC 577 this  

Court while dealing with that expression sounded a note of  

caution  and  described  the  expression  as  an  etymological  

chameleon. That  simile  was borrowed from Lord Diplock’s  

opinion in Town Investments Ltd. v. Department of the  

Environment 1977 (1) All E.R. 813. This Court held that  

the  criminal  court,  particularly  the  superior  court  should  

make a close examination to ascertain whether  there was  

really a failure of justice or whether it is only a camouflage.

201. Mr. Tulsi, learned counsel for the victims’ association  

was unable to satisfactorily demonstrate any failure of justice

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not only because there was no evidence strongly suggestive  

of the accused persons having had the knowledge that their  

acts of omission and commission were likely to cause death  

but  also  because  failure  of  justice  cannot  be  viewed  in  

isolation and independent of the prejudice that the accused  

persons may suffer  on account  of  inordinate  delay in  the  

completion of the trial or what may result from an indefinite  

procrastination of the matter by a remand to the trial Court.  

That  speedy justice is a virtue recognised an integral and  

essential part of the fundamental right to life under Article 21  

of the Constitution is well settled by a long line of decisions of  

this  Court  including  the  three-Judge  Bench  decision  in  

Hussainara Khatoon and Ors. v. Home Secretary, State  

of  Bihar,  Patna  (1980)  1  SCC  81 reiterated  in  A.R.  

Antulay v. R.S. Nayak (1992) 1 SCC 225. This Court in  

the  latter  case  summed  up  the  nature  of  the  prejudice  

caused to an accused by a protracted trial in the following  

words:

“3.  The concerns underlying  the  Right  to speedy   trial from the point of view of the accused are:

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(a) The period of remand and pre-conviction   detention should be as short as possible. In other   words,  the accused should  not  be subjected to   unnecessary or unduly long incarceration prior to   his conviction;

(b) The worry, anxiety, expense and distur- bance to his vocation and peace, resulting from  an unduly prolonged investigation, inquiry or trial   should be minimal; and  

(c)Undue delay may well result in impairment of the   ability of the accused to defend himself, whether   on account of death, disappearance or non-avail- ability of witnesses or otherwise”

202. The  Court  undertook  a  comprehensive  review of  the  

earlier  decisions  in  which  a  remand  for  a  fresh  trial  was  

considered inappropriate and unfair to the accused persons  

having  regard  to  the  intervening  delay.  The  following  

passage is in this regard apposite:

“41. In Machander v. State of Hyderabad 1955 CriLJ   1644, this Court observed that while it is incumbent   on the court to see that no guilty person escapes, it   is  still  more  its  duty  to  see  that  justice  is  not   delayed  and  accused  persons  are  not  indefinitely   harassed. The scales, the court observed, must be   held even between the prosecution and the accused.   In the facts of that case, the court refused to order   trial on account of the time already spent and other   relevant circumstances of that case. In Veerbhadra  v. Ramaswamy Naickar 1958 CriLJ 1565, this Court   refused to send back proceedings on the ground that   already  a  period of  five  years  has  elapsed  and it   would not be just and proper in the circumstances of  

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the case to continue the proceedings after  such a   lapse of time.  Similarly,  in  Chajju Ram v. Radhey   Sham [1971] S.C.R. 172, the court refused to direct   a re-trial after a period of 10 years having regard to   the facts and circumstances of the case. In State of   U.P. v. Kapil  Deo Shukla  1972 CriLJ  1214,  though   the  court  found  the  acquittal  of  the  accused  unsustainable, it refused to order a remand or direct   a trial after a lapse of 20 years. It is, thus, clear that   even  apart  from  Article 21 courts  in  this  country  have  been  cognizant  of  undue  delays  in  criminal   matters and wherever there was inordinate delay or  where  the  proceedings  were  pending  for  too  long  and  any  further  proceedings  were  deemed  to  be  oppressive and unwarranted, they were put an end  to by making appropriate orders.”

203. In Machander’s case referred to in the above passage,  

this Court had summed up the position as follows:

“…We are not prepared to keep persons who are on   trial for their lives under indefinite suspense because   trial judges omit to do their duty. Justice is not one- sided. It has many facets and we have to draw a  nice balance between conflicting rights and duties.   While it is incumbent on us to see that the guilty do   not  escape it  is  even more necessary to see that   persons  accused  of  crime  are  not  indefinitely   harassed. They must be given a fair and impartial   trial  and  while  every  reasonable  latitude  must  be  given  to  those  concerned  with  the  detections  of   crime  and  entrusted  with  the  administration  of   justice,  limits  must  be  placed  on  the  lengths  to   which they may go.

Except  in  clear  cases  of  guilt,  where  the  error  is   purely technical, the forces that are arrayed against   the accused should no more be permitted in special   appeal to repair the effects of their bungling than an   accused should be permitted to repairs gaps in his   defence  which  he  could  and  ought  to  have  made  

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good in the lower courts. The scales of justice must   be kept on an even balance whether for the accused  or against  him, whether  in  favour of  the State or   not; and one broad rule must apply in all cases…”

     (emphasis supplied)

204. So also in Ramaswamy Naickar’s case relied upon by  

this  Court  in  the  above passage,  a  fresh  inquiry into  the  

complaint after five years was considered inappropriate.  This  

Court observed:

“…But the question still remains whether, even after   expressing  our  strong  disagreement  with  the   interpretation  of  the  Section  by  the  courts  below,   this  Court  should  direct  a  further  inquiry  into  the   complaint,  which  has  stood dismissed  for  the  last   about 5 years. The action complained of against the   accused  persons,  if  true,  was  foolish,  to  put  it   mildly, but as the case has become stale, we do not   direct further inquiry into this complaint. If there is   a recurrence of such a foolish behaviour on the part  of any Section of the community, we have no doubt   that those charged with the duty of maintaining law   and order, will apply the law in the sense in which   we  have  interpreted  the  law.  The  appeal  is   therefore, dismissed…”

         (emphasis supplied)

205. To  the  same  effect  is  the  decision  of  this  Court  in  

Kantilal Chandulal Mehta v. The State of Maharashtra  

and Anr. (1969) 3 SCC 166 where this Court observed:

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“…In our view the Criminal  Procedure Code gives   ample  power  to  the  courts  to  alter  or  amend  a  charge whether by the trial court or by the appellate   court  provided  that  the  accused  has  not  face  a  charge for a new offence or is not prejudiced either   by keeping him in the dark about that charge or in   not  giving  a  full  opportunity  of  meeting  it  and   putting  forward  any  defence  open to  him,  on  the   charge finally preferred against him…”  

206. The  incident  in  the  case  at  hand  occurred  about  16  

years ago.  To frame a charge for a new offence and remand  

the matter  back for the accused to face a prolonged trial  

again does not appear to us to be a reasonable proposition.  

We say so independent of the finding that we have recorded  

that the fact situation the case at hand does not suggest that  

the  accused Ansal  brothers  or  any one of  them, had the  

knowledge  that  their  acts  of  omission  or  commission was  

likely to cause death of any human being.  Question No.3 is  

accordingly answered in the negative.  

Re: Question No.IV:

207. We have,  in  the  earlier  part  of  this  judgment,  while  

dealing with Question No.I, examined the scope of criminal

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appeals by special leave and observed that this Court may  

interfere in such appeals only where wrong inferences of law  

have been  drawn from facts  proved before  the  Courts  or  

where the conclusions drawn by the High Court are perverse  

and  based  on  no  evidence  whatsoever.  The  scope  of  

interference by this Court with the quantum of punishment  

awarded by the High Court is also similarly limited to cases  

where the sentence awarded is manifestly inadequate and  

where the Court considers such reduced punishment to be  

tantamount to failure of justice. This can be best illustrated  

by reference to cases in which this Court has interfered to  

either enhance the punishment awarded by the High Court  

or remitted the matter back to the High Court for a fresh  

order on the subject.   

208. In Sham Sunder v. Puran and Anr. (1990) 4 SCC  

731,  the  High  Court  had  converted  a  conviction  for  an  

offence under Section 302 to that under Section 304 Part I  

and reduced the sentence to the period already undergone  

(less  than  six  months)  where  the  accused  had  inflicted

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repeated blows with a sharp-edged weapon on the chest of  

the deceased, and later on vital parts like the head, back and  

shoulders after he fell to the ground in a sudden fight. This  

Court found the reduced sentence imposed by the High Court  

to  be  grossly inadequate  and held  that  it  amounted to  a  

failure  of  justice.  Enhancing  the  sentence  to  five  years  

imprisonment, this Court observed:

“3.  It  is  true  that  the  High  Court  is  entitled  to   reappraise the evidence in the case. It is also true   that under Article 136, the Supreme Court does not   ordinarily  reappraise  the  evidence  for  itself  for   determining whether or not the High Court has come  to a correct conclusion on facts but where the High  Court has completely missed the real point requiring   determination  and  has  also  on  erroneous  grounds  discredited the evidence...the Supreme Court would   be  justified  in  going  into  the  evidence  for  the   purpose of satisfying itself  that grave injustice has   not resulted in the case.

xx xx xx

8. The High Court has reduced the sentence to the   term  of  imprisonment  already  undergone  while   enhancing  the  fine.  It  is  pointed  out  that  the   respondents have undergone only imprisonment for   a  short  period  of  less  than  six  months  and,  in  a   grave crime like this, the sentence awarded is rather   inadequate...The  sentence  imposed  by  the  High   Court  appears  to  be  so  grossly  and  entirely   inadequate as to involve a failure of justice. We are  of  opinion  that  to  meet  the  ends  of  justice,  the   sentence has to be enhanced.”

  (emphasis supplied)

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209. In  Deo Narain Mandal v.  State of Uttar Pradesh  

(2004) 7 SCC 257, the trial Court had awarded a maximum  

sentence of two years rigorous imprisonment for an offence  

punishable under Section 365, IPC. The High Court reduced  

the sentence to the period undergone (forty days). A three-

Judge Bench of this Court intervened on the ground that the  

sentence awarded was wholly disproportionate to the crime  

and  substituted  a  sentence  of  six  months  rigorous  

imprisonment. The Court held as follows:

“8. This brings us to the next question in regard to   the reduction of sentence made by the High Court.   In criminal cases awarding of sentence is not a mere   formality. Where the statute has given the court a   choice  of  sentence  with  maximum  and  minimum  limit  presented  then  an  element  of  discretion  is   vested  with  the  court.  This  discretion  cannot  be   exercised arbitrarily or whimsically. It will have to be   exercised  taking  into  consideration  the  gravity  of   offence, the manner in which it  is committed, the   age,  the  sex  of  the  accused,  in  other  words  the   sentence to be awarded will have to be considered   in the background of the fact of each case and the   court  while  doing  so  should  bear  in  mind  the   principle  of  proportionality.  The  sentence  awarded  should be neither excessively harsh nor ridiculously   low.

xx xx xx

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10.  The  High  Court  in  this  case  without  even   noticing  the  fact  what  is  the  actual  sentence   undergone  by  the  appellant  pursuant  to  his   conviction awarded by the Trial Court proceeded to   reduce the same to the period already undergone   with an added sentences of fine as stated above. Of   course,  the  High  Court  by  the  impugned  order   recorded  that  the  facts  and  circumstances  of  the  case as well as age, character and other antecedents   of the appellant which made the court feel that the   ends  of  justice  would  be  met  if  the  sentence  is   reduced and modified. This conclusion of the High   Court  for reducing the sentence in our considered   view  is  wholly  disproportionate  to  the  offence  of   which the appellant is found guilty.

11...On  facts  and  circumstances  of  this  case,  we  must hold that  sentence of 40 days for an offence  punishable under Section 365/511 read with Section   149 is wholly inadequate and disproportionate.

12.  For  the  reasons  stated  above,  we  are  of  the   opinion that the judgment of the High Court, so far   as it pertains to the reduction of sentence awarded   by the Trial Court will have to be set aside.”

          (emphasis supplied)

210. Similarly in  State of U.P. v. Shri Kishan (2005) 10  

SCC 420 this Court intervened when a sentence of seven  

years rigorous imprisonment awarded by the trial Court for  

an offence punishable under  Section 304 Part  II, IPC was  

reduced by the High Court to the period already undergone,  

without regard to the period actually served by the accused.  

This Court directed the High Court to re-hear the appeal on

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the question of sentence keeping in mind the principles on  

sentencing  laid  down  by  this  Court  in  State  of  Madhya  

Pradesh v. Ghanshyam Singh (2003) 8 SCC 13 that the  

sentence  must be  proportionate  to  the  offence  committed  

and sentence ought not to be reduced merely on account of  

long pendency of the matter.  

211. In State of M.P. v. Sangram and Ors. AIR 2006 SC  

48 a three-Judge Bench of this Court remanded the matter  

to the High Court for fresh disposal without going into the  

merits of the case, when it found that the High Court had  

reduced a sentence for an offence under  Section 307 IPC  

from  seven  years  rigorous  imprisonment  to  the  period  

already undergone (ten months and five days) by a short  

and cryptic judgment:

“...Learned counsel for the appellant has submitted   that  the  sentence  imposed  by  the  High  Court  is   wholly  inadequate  looking  to  the  nature  of  the   offence.  The  High  Court  has  not  assigned  any   satisfactory reason for reducing the sentence to less   than  one  year.  That  apart,  the  High  Court  has   written a very short and cryptic judgment. To say  the least, the appeal has been disposed of in a most   unsatisfactory  manner  exhibiting  complete  non- application  of  mind.  There  is  absolutely  no

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consideration  of  the  evidence  adduced  by  the   parties...Since the judgment of the High Court is not   in accordance with law, we have no option but to set   aside the same and to remit the matter back to the   High Court for a fresh consideration of the appeal...”  

212. It  is  manifest  from  the  above  that  while  exercising  

extra-ordinary  jurisdiction  under  Article  136  of  the  

Constitution  this  Court  has  not  acted  like  an  ordinary  

Appellate Court but has confined its interference only to such  

rarest of rare situations in which the sentence awarded is so  

incommensurate  with  the  gravity  of  the  offence  that  it  

amounts to failure  of  justice.  As a matter  of  fact  in  Deo  

Narain Mandal’s case (supra) while this Court found the  

sentence awarded to be wholly disproportionate to gravity of  

the offence, this Court considered imprisonment for a period  

of  six  months  to  be  sufficient  for  an  offence  which  is  

punishable  by  a  maximum  term  of  two  years  rigorous  

imprisonment.  Award  of  sentence  of  one  year  rigorous  

imprisonment  for  an  offence  where  maximum  sentence  

prescribed extends to two years cannot, therefore, be said to

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be inadequate to call  for  interference by this Court  under  

Article 136 of the Constitution.  

213. Having said that we must notice certain additional and  

peculiar features of this case. First and foremost is the fact  

that Mr. Salve, learned counsel for CBI, did not, in the course  

of his submissions, urge that the sentence awarded by the  

High Court to Ansals was inadequate. This is in contrast to  

the grounds urged in the memo of appeal by the CBI where  

the  inadequacy  of  sentence  was  also  assailed.   In  the  

absence of any attempt leave alone a serious one by the  

State acting through CBI to question the correctness of the  

view taken by the High Court on the quantum of sentence we  

would consider the ground taken in the memo of appeal to  

have been abandoned at the Bar.

214. The second and an equally important consideration that  

would weigh with any Court is the question of prolonged trial  

that  the  accused have faced and the  delay of  more than  

sixteen years in the conclusion of the proceedings against  

them. We have in the earlier part of our order referred to the

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decision of a three-Judge Bench of this Court in Hussainara  

Khatoon case (supra) where this Court declared the right to  

speedy trial to be implicit in Article 21 of the Constitution.  

Such being the case delay has been often made a basis for  

the award of a reduced sentence, as for instance in Balaram  

Swain v. State of Orissa 1991 Supp (1) SCC 510  this  

Court  reduced  the  sentence  from  one  year  rigorous  

imprisonment to the period undergone (less than six months)  

on the ground that there was a delay of twenty three years  

involving long mental agony and heavy expenditure for the  

accused. So also in M.O. Shamsudhin v. State of Kerala  

(1995) 3 SCC 351 sentence was reduced by this Court from  

two years rigorous imprisonment to the period undergone on  

the ground of delay of eight years.  There is no reason why  

in  the  case  at  hand  the  delayed  conclusion  of  the  

proceedings should not have been taken by the High Court  

as a ground for reduced sentence of one year.  

215. The  third  circumstance  which  dissuades  us  from  

interfering with the sentence awarded by the High Court is

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the fact that the appellant-Ansals did not have any criminal  

background and are both senior citizens, whose company has  

already  been  adjudged  liable  to  pay  compensation  to  the  

victims  besides  punitive  damages  awarded  against  them.  

This Court has in MCD, Delhi v. AVUT (supra) arising out of  

a writ petition seeking compensation for the victims and their  

families awarded compensation @ Rs.10 lakhs in the case of  

death of those aged more than 20 years and 7.5 lakhs in the  

case of those aged 20 years and less besides compensation  

of Rs.1 lakh to those injured in the incident with interest @  

9% p.a. and punitive damages of Rs.25 lakhs. There is no  

dispute that the amount awarded by the High Court has been  

deposited by the  Ansal Theaters & Clubotels (P) Ltd.  in the  

proportion in which the claim has been awarded. The award  

so made is in tune with the spirit of the view taken by this  

Court  in  Ankush  Shivaji  Gaikwad  v.  State  of  

Maharashtra (2013) 6 SCC 770 where this Court noted a  

global paradigm shift away from retributive justice towards  

victimology  or  restitution  in  criminal  law.   There  is  no

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gainsaying that in the absence of the order passed by this  

Court  in  MCD,  Delhi  v.  AVUT  (supra),  we  may  have  

ourselves  determined  the  compensation  payable  to  the  

victims and awarded the same against Ansal brothers. Any  

such exercise is rendered unnecessary by the said decision  

especially because a reading of sub-section (5) of Section  

357  of  the  Cr.P.C.  makes  it  manifest  that  compensation  

awarded by a Criminal Court under Section 357 cannot be  

more than the sum that may be payable or recovered as  

compensation in a subsequent civil suit. That provision was  

interpreted by this Court in  Dilip S. Dahanukar v. Kotak  

Mahindra Co.  Ltd.  (2007) 6 SCC 528 to  hold that  the  

amount of compensation under Section 357 should ordinarily  

be less than the amount which can be granted by a civil  

Court upon appreciation of the evidence brought before it for  

losses that it may have reasonably suffered.  

216. For all that we have stated above we do not see any  

merit  in  the  contention  of  Mr.  Tulsi  that  the  punishment  

awarded to the Ansal brothers ought to be enhanced either

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because there is an allegation against them for tampering  

with  the  Court’s  record  or  because  there  is  a  complaint  

pending  against  them before  the  learned  ACMM in  which  

Ansal brothers and their so called henchmen are accused of  

having  intimidated  and  threatened  the  President  of  the  

Victims’ Association. There is no gainsaying that both these  

matters are pending adjudication by the competent criminal  

Court  and  any  observation  as  to  the  truthfulness  of  the  

allegations made therein will not only be inappropriate but  

also  prejudicial  to  one  or  the  other  party.  So  also  the  

argument  that  the  Ansal  brothers  having  persistently  lied  

about their  association with the company does not, in our  

opinion, outweigh the considerations that we have indicated  

hereinabove  while  upholding  the  view  taken  by  the  High  

Court  on  the  question  of  sentence.  We  need  to  remind  

ourselves that award of punishment in a case where guilt of  

the accused is proved, is as serious and important a matter  

as  the  forensic  process  of  reasoning  by  which  the  

presumption  of  innocence  is  rebutted  and  the  accused

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pronounced guilty. Like the former the latter also needs to be  

guided  by  sound  logic  uninfluenced  by  any  emotional  or  

impulsive outburst or misplaced sympathy that more often  

than not manifests itself in the form of a sentence that is  

either  much  too  heavy  and  oppressive  or  wholly  

incommensurate  considering  the  gravity  of  the  offence  

committed.  Courts have to avoid such extremities in their  

approach especially where there is no legislative compulsion  

or statutory prescription in the form of a minimum sentence  

for an offence. The Courts do well to avoid the Shylockian  

heartlessness in demanding the  proverbial  pound of flesh.  

Justice  tempered  by  mercy  is  what  the  Courts  of  law  

administer even to the most hardened criminals.   A spine-  

chilling sentence may be the cry of those who have suffered  

the crime or its aftermath but Courts are duty bound to hold  

the  scales  of  justice  even  by  examining  the  adequacy  of  

punishment in each case having regard to the peculiar facts  

in  which the  offence  was committed  and the  demands  of  

justice by retribution within permissible limits. Absence of a

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uniform  sentencing  policy  may  often  make  any  such  

endeavour  difficult  but  the  Courts  do,  as  they  ought  to,  

whatever is fair and reasonable the difficulties, besetting that  

exercise notwithstanding.            

217. Question No.IV is accordingly answered in the negative.  

Re: Question No.V:

218. Adherence to safety standards in cinema theatres and  

multiplexes in India is the key to the prevention of tragedies  

like the one in the instant case. The misfortune, however, is  

that those concerned with the enforcement of such standards  

often  turn  a  blind  eye  to  the  violations,  in  the  process  

endangering  the  lives of  those  who frequent  such places.  

While the case at hand may be an eye-opener for such of  

them as are remiss in their duty towards the public visiting  

cinema theatres and multiplexes, the authorities concerned  

cannot afford to let their guard down.  As seen in the earlier  

part of this order, there are both civil and criminal liabilities  

that  arise  out  of  any  such  neglect.  Those  who  commit

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violations of the same are accountable before law and may  

eventually come to grief should an incident occur resulting in  

injury or loss of human lives. We would have in the ordinary  

course issued directions to the authorities to take corrective  

steps, but for the fact that such directions have already been  

issued by a coordinate Bench while dealing with claims for  

payment of compensation made by the legal heirs of those  

who died and others who were injured in the incident.  This  

Court has in the said decision observed:

“45. While affirming the several suggestions by the   High Court, we add the following suggestions to the   government for consideration and implementation:

(i) Every licensee (cinema theatre) shall be required   to draw up an emergency evacuation plan and get it   approved by the licensing authority.

(ii) Every cinema theatre shall be required to screen   a short documentary during every show showing the   exits, emergency escape routes and instructions as   to what to do and what not to do in the case of fire   or other hazards.

(iii) The staff/ushers in every cinema theatre should   be trained in fire drills and evacuation procedures to   provide  support  to  the  patrons  in  case  of  fire  or   other calamity.

(iv) While the theatres are entitled to regulate the   exit through doors other than the entry door, under   no circumstances, the entry door (which can act as   an  emergency  exit)  in  the  event  of  fire  or  other   emergency) should be bolted from outside. At the  

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end  of  the  show,  the  ushers  may  request  the   patrons to use the exit doors by placing a temporary   barrier across the entry gate which should be easily   movable.

(v)  There  should  be  mandatory  half  yearly   inspections  of  cinema  theatres  by  a  senior  officer   from the Delhi Fire Services, Electrical Inspectorate   and  the  Licensing  Authority  to  verify  whether  the   electrical  installations  and  safety  measures  are   properly  functioning  and  take  action  wherever   necessary.

(vi)  As  the  cinema  theatres  have  undergone  a   change  in  the  last  decade  with  more  and  more   multiplexes  coming  up,  separate  rules  should  be   made  for  Multiplex  Cinemas  whose  requirements   and concerns are different from stand-alone cinema  theatres.

(vii) An endeavour should be made to have a single   point nodal agency/licensing authority consisting of   experts  in  structural  Engineering/building,  fire   prevention,  electrical  systems  etc.  The  existing   system  of  police  granting  licences  should  be   abolished.

(viii) Each cinema theatre, whether it is a multiplex   or stand-alone theatre should be given a fire safety   rating by the Fire Services which can be in green   (fully  compliant),  yellow  (satisfactorily  compliant),   red  (poor  compliance).  The  rating  should  be  prominently displayed in each theatre so that there   is  awareness  among the  patrons  and the  building   owners.

(ix)  The  Delhi  Disaster  Management  Authority,   established by the Government of NCT of Delhi may  expeditiously  evolve  standards  to  manage  the   disasters  relating  to  cinema  theatres  and  the   guidelines  in  regard  to  ex  gratia  assistance.  It   should  be directed  to  conduct  mock drills  in  each   cinema theatre at least once in a year.”

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219. We had in the light of the above passed an order in  

Criminal Appeal No.603 of 2010 directing the concerned to  

file a status report as to the steps taken pursuant to the  

above  directions.  We  regret  to  say  that  nothing  much  

appears to have happened since the issue of the directions  

extracted above. This would have called for monitoring of the  

steps which the authorities concerned were directed to take,  

but  any  such  process  would  have  further  delayed  the  

pronouncement of this order.  We have, therefore,  decided  

against that course. We all the same leave it open to the  

Victims’  Association or  any other  public  spirited person to  

seek  implementation  of  the  said  directions  in  appropriate  

proceedings.   

220. Question No. V is answered accordingly.

221. In the result :

(i) Criminal Appeals No.597 of 2010 and 598 of 2010  

filed  by  Sushil  Ansal  (A-1)  and  Gopal  Ansal  (A-2)

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respectively  are  hereby  dismissed  upholding  the  

conviction and sentences awarded to them.

(ii) Criminal  Appeal  No.599 of  2010 filed by Divisional  

Fire  Officer,  H.S.  Panwar  (A-15)  is  also  dismissed  

upholding his conviction and sentence.   

(iii) Criminal Appeal No.617-627 of 2010 and No.604 of  

2010 filed by D.V.B. Inspector B.M. Satija (A-9) and  

Senior Fitter Bir Singh (A-11) are partly allowed to  

the  extent  that  the  conviction  of  the  said  two  

appellants is altered to Sections 337 and 338 read  

with  Section  36  IPC  without  interference  with  the  

sentence awarded to them.      

(iv) Criminal Appeal No.605-616 of 2010 filed by CBI and  

Criminal  Appeal  No.600-602  of  2010  filed  by  the  

Association  of  Victims  of  Uphaar  Tragedy  are  

dismissed.   

222. Appellants  Sushil  Ansal  (A-1),  Gopal  Ansal  (A-2)  and  

H.S.  Panwar  (A-15)  are  on  bail.  They  are  granted  three

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weeks time to surrender, failing which the Trial Court shall  

take  appropriate  steps  for  having  them apprehended  and  

committed  to  jail  for  undergoing  the  remainder  of  their  

sentences.

.………………….……….…..…J.         (T.S. THAKUR)

     March 5, 2014

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IN THE SUPREME COURT  OF INDIA

CRIMINAL APPELALTE JURISDICTION

CRIMINAL  APPEAL NOs. 605-616/2010  

STATE THROUGH CBI       .. Appellant

Versus

SUSHIL ANSAL & ORS. ETC.                   ..Respondents

WITH

CRIMINAL  APPEAL NOs. 600-602/2010

ASSOCIATION OF VICTIMS OF UPHAAR TRAGEDY  .Appellant

Versus

SUSHIL ANSAL & ANR.           ..Respondents

J U D G M E N T

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GYAN SUDHA MISRA, J.

1. Having  had  the  benefit  of  the  views  and  reasonings  

assigned in the judgment and order of Hon’ble Justice T.S. Thakur,  

I  entirely  agree  and  hence  concur  with  the  findings  recorded  

therein which are based on an in depth analysis and meticulous  

scrutiny of evidence led by the prosecution as also the accused  

appellants  therein.   Hence,  I  approve  of  the  conviction  of  the  

accused  appellants  under  Sections  304A,  337,  338  read  with  

Section 36 of the Indian Penal Code (‘IPC’ for short) and Section 14  

of the Indian Cinematograph Act, 1952.   

2. However,  when  it  comes  to  determination  and  

imposition  of  sentence  on  the  appellants  due  to  their  gross  

criminal negligence, I find it difficult to be unmindful or ignore that  

this country  and more particularly the capital city of Delhi was  

shocked  and shaken to the core  16 years ago by the magnitude  

and  disastrous   incident  which  took  place  on  13.6.1997  in  a  

cinema house now widely known as Uphaar Tragedy which had  

virtually turned the cinema house  into a pitch   dark gas chamber  

wherein the  cinema viewers were initially trapped due to lack of

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sufficient space and light for exit from the cinema hall and finally  

59 persons lost their lives due to asphyxiation in the  catastrophe  

which is perhaps unparalleled in the history of the city of  Delhi.  

This tragic incident happened due to grave lapse on the part of  

the appellants/respondents in the instant appeals preferred by the  

AVUT and the CBI, who have been held guilty of gross criminal  

negligence  concurrently  by the  Trial  Court  and the  High  Court  

which are now being approved by us in these appeals.   

3. The appellants Sushil Ansal and Gopal Ansal in Criminal  

Appeal  No.  597  of  2010  and  Criminal  Appeal  No.598 of  2010,  

therefore, had been charged and convicted for  an offence under  

Section 304A, 337, 338 read with Section 36 I.P.C. and Section 14  

of  the  Cinematograph  Act,  1952  and  sentenced  to  undergo  

imprisonment  for  two  years  by  the  trial  court.   Similarly,  the  

appellants in Criminal Appeal No.599 of 2010 and Criminal Appeal  

No.617  to  627  of  2010  and  Criminal  Appeal  No.604  of  2010  

preferred by the Divisional Fire Officer H.S. Panwar and Officers of  

Delhi  Vidyut  Board  (shortly  referred  to  as  ‘DVB’)  were  also  

convicted and sentenced to terms of imprisonment specified in  

the impugned judgment and order of the High Court of Delhi. On

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appeal, however, the High Court although upheld the conviction of  

the appellants/respondents herein under the sections referred to  

hereinbefore, was pleased to reduce the sentence of two years  

into one year   but  the appellants/respondents herein have still  

preferred  a  batch  of  appeals  in  this  Court  challenging  their  

conviction and sentence on several grounds.

4. Learned  Justice  T.S.  Thakur  in  the  accompanying  

judgment and order has already dealt with the matter in extensive  

detail and has recorded a finding upholding their conviction and  

sentence under Section 304A alongwith the other Sections.  I fully  

endorse  the  same   and  hence  uphold  the  conviction  of  the  

appellants under Section 304A, 337, 338 read with Section 36 of  

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

5. But with regard to the question of sentence,  it may be  

noted  that  the  trial  court   had  convicted  the  appellants  and  

sentenced  them to  imprisonment for two years which has been  

reduced  by  the High Court to one year only in spite of the  fact  

that the High Court also upheld the findings of  the trial court on  

the  charge  under  Section   304A   and  other   allied  sections

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referred to hereinbefore.  However, the High Court in spite of its  

finding  highlighting  the  magnitude  and  gravity  of  the   offence  

committed  by  the  appellants  has  simply  observed  that  the  

maximum sentence of two years under Section 304A is fit to be  

reduced to a period of one year only for   which  no  specific  

reason  much  less  cogent              and   convincing   has been  

assigned as to why  in the wake of  

the  finding  upholding  the  charge and conviction under  Section  

304A IPC, should not have upheld and maximum sentence of two  

years and whether the same was fit to be reduced to a period of  

one year only.  But, before dealing with the question of quantum  

and sufficiency of punishment imposed on the appellant, I deem it  

appropriate   to take into consideration the appeal  filed by the  

appellant-Association  for  victims  of  Uphaar  Tragedy  (shortly  

referred  to  as  ‘the  AVUT’)  bearing  Criminal  Appeal  No.600-

602/2010 filed by the AVUT in a representative capacity for the  

victims of Uphaar Tragedy as also the appeal filed by the C.B.I.  

bearing No.605 to 616 of 2010.

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6. Learned Senior Counsel Mr. K.T.S. Tulsi in support of the  

appeal  preferred by the AVUT had initially challenged the charge  

framed against the accused appellants under Section 304A and  

had  contended that  the  charge  was fit  to  be  converted  under  

Section 304 Part  II  IPC.   On perusal  of the findings, views and  

observations  as  also  the  reasons  assigned  therein  by  Hon’ble  

Thakur, J.,  I entirely agree that after more than 16 years  of the  

incident,  it  would not be  just  and appropriate  to remand the  

matter back to the trial court  to consider converting the charge  

from Section 304A to  304 IPC  so  that  the  accused may   face  

prolonged trial all over again as  I am  also equally  of   the  view  

that  it  would  not  be   reasonable or a just proposition and the  

correct course of action to adopt.  However, this does not deter  

me from accepting the contention  of the counsel for the AVUT  

that even if this Court  considers that at this  length  of time from  

the date of  the incident ordering a fresh trail  may not be  in the  

larger  public  interest,  it  would  not  be  a  reason  to  refuse  to  

consider whether  accused-appellants  deserved  the maximum  

sentence  permissible  under  Section  304A  IPC  in  spite  of  the  

gravity of charge and conviction which we have upheld.  

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7. In order to consider this  crucial aspect of the matter, it  

would be  necessary to recollect and refer to the findings recorded  

by  the  trial  court  and  the  High  Court  approved  by  us  which  

learned Thakur J.  has analyzed in great  detail  holding that  the  

death of 59 innocent  persons  are directly relatable to the rash  

and negligent  acts of omissions and commissions of the accused  

persons which were performed with such gross negligence  and  

indifference which clearly amounts to culpable criminal negligence  

and failure to exercise  reasonable and proper care in running the  

cinema shows in their theatre namely Uphaar and the failure  of  

the  accused-appellants  to  perform the  imperative  duties   cast  

upon them  by statutory rules, which were sufficient  to establish  

culpable criminal   rashness and it  further establishes that  they  

acted with consciousness and the requisite knowledge  as to the  

consequence   of their acts of omissions and commissions.   Death  

of innocent persons is thus  not only contributed by the actions  of  

the accused-appellants  but is directly  relatable  to the overt acts  

and  conscious omissions  performed by them.    Hence,  I  fully  

agree with the views of learned Brother Justice Thakur that the  

degree of care expected from an occupier/owner  of a place which

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is  frequented everyday  by hundreds if not thousands   is very  

high in comparison to any other  place that is less frequented  or  

more sparingly  used for public functions.  It is also equally true  

and I agree that the higher the number of visitors to a place and  

greater the frequency of  such visits, the degree of care required  

to be observed for their safety is higher.  I, therefore, endorse the  

findings   recorded  by  Thakur  J.,   that  judged  in  the  above  

backdrop, it is evident that the occupiers/appellants in the present  

case had showed scant regard both for the  letter of law as also  

the duty under the common law to care for the safety of their  

patrons.   I also further agree with the view that the occupiers not  

only committed deviations from the sanctioned building plan that  

heightened  the  risk to the  safety of the visitors but continued to  

operate  the  cinema  in   contemptuous   disregard  for  the  

requirements  of law  and in the process exposed the  cine goers  

to  a   high  degree  of  risk  to  their  lives  which  some  of  them  

eventually  lost in the incident  in question.    

8. Far from taking any additional care towards the safety  

of the visitors to the cinema, the occupiers   asked for permission  

to  place  additional  seats  that  further   compromised   with  the

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safety requirements and raised the level of risks to the  patrons.  

There is much substance  in the view taken  that the history of  

litigation   between  the  occupiers   on  the  one  hand  and  the  

government on the other regarding  the removal of  the additional  

seats permitted and their  opposition to the concerns expressed  

by the authorities  on account of  increased fire hazards as also  

their   insistence  that the addition or continuance of the seats  

would  not  affect   the  safety  requirements  of  the  patrons/cine  

goers clearly showed that the  owner of the cinema house  were  

more  concerned  with making a little more  profit  out of  the few  

additional seats that  were added to the  cinema in the balcony  

rather  than  maintaining  the  required  standards  of  safety  in  

discharge   of the common law duty but also under the provisions  

of the Delhi Cinematograph Rules,1953 (for short ‘DCR  1953’).  

9. It  is  no  doubt  true  which  was  urged  on   behalf   of  

accused-appellants that the incident in question which resulted in  

death of 59 persons in the fire that broke out was caused by the  

fire which started from  the Delhi Vidyut Board Transformer which  

was poorly maintained and shabbily repaired by the  Delhi Vidyut  

Board officials in the morning of 13th June, 1997.  It was urged that

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the  causa causans  i.e. the cause of all  causes for the loss of  

human lives thus was the transformer that caught fire because of  

the  negligence  of  the  DVB officials   who did  not  even  have a  

crimping   machine  to  repair  the  transformer  properly.   The  

absence of oil  soaking  pit  in the transformer room was also a  

reason for the  oil to spill  out from the transformer room to spread  

the fire to the parking  area from where smoke   containing  lethal  

carbon monoxide rose, and due to chimney effect , entered the  

hall to cause asphyxiation to those inside the balcony.  It  was,  

therefore,   urged  on  behalf  of  the   accused-appellants/cinema  

house owners that there was no evidence that any death  had  

taken place inside the balcony which proved that most if not all  

the patrons sitting in the balcony had  exited  from that area but  

died on account of the  poisonous  effect of the gas enough to kill  

human being within minutes      of exposure.   Placing reliance on  

the ratio of the decision of this Court in the  case of  Kurban  

Hussein’s case reported in 1965 (2) SCR 622, it was no doubt  

submitted that the causa causans     in the case at hand was the  

fire in the DVB transformer  and not the alleged deviations  in the

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building plan or the sitting arrangements or the obstructions in  

the  stair case that  led out of  the cinema precincts.

10. In fact, learned counsel representing the CBI Mr. Harish  

Salve and the counsel representing AVUT Mr. KTS Tulsi  accepted  

the position that while there was no quarrel  with the proposition  

that   death  must  be  shown  to  have  occurred   as  a  direct,  

immediate  or  proximate   result  of  the  act  of  rashness  or  

negligence, it was not  correct to say that the deaths in this case  

had occurred merely because of the fire in the transformer.   In  

fact,  failure of the victims to rapidly exit  from the smoke filled  

atmosphere in the  balcony area  because of the obstructions and  

deviations   proved  at  the  trial   was  the  real,  direct    and  

immediate cause for the  death of the victims in the instant case  

who would have safely escaped the  poisonous carbon monoxide  

gas only if there were proper gangways, exits, emergency lights  

and  alarm system  in  working  condition  and  human  assistance  

available to those trapped  inside the  hall.  I see no reason to  

differ or disagree with this finding  so as to take a different view  

from what  has been taken by Hon’ble Justice Thakur who has

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upheld the findings of the trial court and the High Court on these  

aspects.  

11. Thus there appears to be  two features in this context  

which need to be addressed and the first one   is that  the victims  

in the present case did not die of burn injuries but all of them died  

because of asphyxiation  on account of  prolonged exposure  to  

poisonous gases  that filled the cinema hall including the balcony  

area.  Whatever may have been the source of  fire  as to whether  

it  was caused by the DVB transformer or otherwise, the  causa  

sine quo non  was that there would have been no smoke  possible  

without fire; the proximate cause  was the smoke in the balcony  

area. Had there been no smoke in the balcony area, there would  

have been no casualties; that is not however the same thing  as  

saying  that it was the fire or the resultant smoke that was causa  

causans.   In fact it was  the inability of the  victims  to move out  

of the smoke filled area which was  the direct cause of their death.  

Placed in a smoke filled atmosphere anyone  would  distinctively  

try to escape from it  to save himself.  Therefore, if such escapes  

were delayed or prevented,   the   causa causans for death was

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not the smoke but  the  factors that prevented or delayed the  

escape  of   cine  goers from the  

smoke  filled  area  which  was  the  cinema  house   which  got  

converted into  a gas chamber.   

12. I  find sufficient substance and force and hence agree  

with the view taken by Hon’ble  Justice Thakur  that even if there  

had been  adequate number of exits, gangways  and  all other  

safety  measures    in  place   but  the  exits  had  been  locked  

preventing people from  escaping, the cause of  death in such  

event would be the act of  preventing people from fleeing/exiting  

from the smoke filled hall which  may be depending upon whether  

the act was deliberately intended to cause death or unintended  

due to negligence amounting  to culpable homicide  amounting to  

murder which was an act of gross negligence  punishable  under  

Section 304 A.  An hypothetical  case  has rightly been relied upon  

to  infer  that  where instead of  four exits  required  under the  

relevant rules, the owner of a cinema had provided only one exit,  

that would have prevented the patrons from moving  out of the  

hall rapidly from the smoke  filled atmosphere.  Thus, the cause of

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all causes termed as ‘causa causans’    would be the negligent act  

of providing  only one exit instead of four required for the purpose.  

In such an eventuality, it would make  no difference  whether the  

fire  had  started  from  a  source  within  the  cinema  complex  or  

outside  or whether the  occupiers of the cinema were responsible  

for  the  fire  or  someone else.   Thus if  failure   to  exit  was the  

immediate cause of death which is the view  taken by  learned  

Justice Thakur and I  agree, that the same would constitute the  

causa causans  and hence I see no  reason to deviate from the  

view taken as  I find  sufficient   substance  and force in the view  

that the smoke entered  the cinema hall   and the balcony but  

escape was prevented  or at least delayed  because of breach  of  

the common law and statutory duty to care.  Reference of the  

citations  on  this  point  relied  upon  by  Justice  Thakur   in  the  

accompanying judgment needs  no further reiteration which has  

been  amply discussed at great length therein.         

13. The defence no doubt has relied  upon the principle of  

benefit of penal immunity that if the person doing an act is acting  

under a mistake of fact and the person doing the act in good faith  

believes himself  to be justified by law in doing it, then he would

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be entitled to protection under Section 52 of the IPC which states  

“that nothing is said to  be done or  believed in “good  

faith” which is  done or   believed without  due care and  

attention” would incur penal consequences.   

14. The  use  of  expression  “good  faith”  in  this  context  

necessarily brings in the question whether the person concerned  

had acted with due care and caution.  If they had not, part (b) of  

Section 79 IPC would have no application to the case.   In  this  

context, it is difficult to overlook the evidence addressed by the  

prosecution/C.B.I.  Thus the view taken by Justice Thakur that due  

care   for  the  safety  of  the   patrons  was  cast  upon  the  two  

appellants  Ansal  Brothers  fell  upon them which they failed to  

comply as the evidence adduced at the trial and the concurrent  

findings  recorded by  the courts  below  have established the  

breach of the duty in several respects which include  absence of  

any  public address system to warn the viewers of the cinema  

inside the cinema hall in the event of any emergency which was a  

part  of  the  duty  to  care  which   was  grossly  breached  by  the  

occupiers/appellants herein. This duty was a continuing obligation  

and had to be strictly discharged in respect of  each cinema show

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conducted in the theatre.  The grant of license  or its renewal  by  

the  licensing   authority   did  not   in  any  manner  relieve  the  

occupiers of that obligation.  Similarly, the requirement that the  

cinema house must have had emergency lights, fire extinguishers  

and that the occupiers  must have provided help to the viewers in  

case  of  any  emergency  ensuring   rapid  dispersal   from  the  

enclosed  area,   were   obligations  which  were  implicit  in  the  

issuance and renewal of cinematograph license.    Breach of all  

these obligations  could not be justified  on the ground  that a  

license  was granted or renewed in favour of the owners/licensee  

and no matter what, the duty to care towards  the safety of the  

patrons  was  grossly   neglected  by  the  theatre   owners/  the  

accused appellants.  Failures  in the event  of  mishap like the one  

at  hand  on  account  of  the  occupiers   to  discharge  their  legal  

obligations to take  care for  the safety  of   the  patrons  thus  

cannot be held to be  immune

from  prosecution simply because a license  to  exhibit  the  films  

had been granted or renewed from time to time.   The test of  

ordinary  prudence  applied  to   such  proved   attendant

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circumstances thus can help the  court to determine  whether  an  

act or omission was in good faith or otherwise.   

15. Thus, the finding recorded in the judgment by Thakur J.,  

to the effect that the fundamental   obligation and duty to care at  

all times  rested with the occupiers of the cinema house and the  

licensee thereof is fit to be upheld.  In discharge  of the duty the  

appellants/owners are  surely not entitled to  argue that   so long  

as  there  was  a  license    in  their  favour,  they  would  not  be  

accountable for the loss of life or limb of anyone  qua  whom the  

occupiers/owners owed that duty.  The duty to care for the safety  

of the   cine goers  even  independent of the statutory additions  

made to the same , required the occupiers to take all such steps  

and measures which would have ensured  quick dispersal   from  

the  cinema building   of all the viewers inside the premises in the  

event of  an emergency.  But apart from that, a sitting plan which  

was in breach of the statutory provisions and compromised the  

safety requirement  prescribed under the DCR 1953,  could hardly  

support a belief  in good faith that  exhibition of films with such a  

plan was legally justified.  That is so especially  when the  repeal  

of notification dated 30th September  1976 by which Uphaar was

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permitted 100 more seats was  followed by a demand for removal  

of the additional seats.  Instead of doing so the appellants/owners  

challenged that demand  in a writ petition before the High Court of  

Delhi in which the High Court  directed the authorities  to have a  

fresh look from the standpoint of substantial compliance  of the  

provisions of the  Cinematograph Act.  The High  Court  observed  

and  directed  the  administration  to  apply  their  mind   to  the  

additional seats with a view to determine which of them  have  

contravened which rules  and to what extent.  It was observed  

that compliance with the rule were to be substantial  and not  rigid  

and  inflexible.   If  while  carrying  out  the  above  directive,  the  

authorities  concerned  turned a blind eye  to the  fundamentals of  

the  rules   by  ignoring   the  closure  of  the  right  side  exit  and  

gangway  prescribed  as   an  essential  requirement  under  DCR  

1953,  they  acted  in  breach  of  the  rules  and   in  the   process  

endangered the safety of the cinema viewers.      The cinema  

owners had opposed the  removal of the additional seats even  

when  the   respondent-authorities   in  the  writ  petition  had  

expressed  concerns   about  the   safety  of  the  patrons  if  the  

additional  seats were not  removed which removal would  have by

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itself  resulted in restoration of the  right side gangway.   However,  

the authorities also ought to have insisted on the restoration of  

the right side exit  by removal of the eight seaters box  which was  

allowed  in the year  1978 ostensibly because with the right side  

gangway getting closed by additional seats occupying  that space,  

the authorities  considered the continuance of the right side exit  

to be of no  practical use.

16. In  the wake of the  aforesaid  concurrent  findings,  the  

question  looms  large as to why the High Court  interfered with  

the quantum of  punishment imposed by the trial court which had  

awarded a sentence of two years  to the accused  appellants  but  

was reduced by the High Court  to a period of one year without  

any reason as I cannot be unmindful of the legal position that the  

scope  of  interference on the  question of  sentence and with the  

quantum  of   punishment  awarded  by  the  High  Court   is  

undoubtedly  limited  to cases where  the sentence imposed is  

manifestly   inadequate   and  which  the   Court  considers  such  

reduced punishment tantamount  to  no punishment or illusory.  

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17. On a perusal  of the ratios of cases referred to  on this  

point specially in the matter of  Sham Sunder vs.  Puran and  

Anr.  (1990) 4 SCC 731, it has been held  that in a case where the  

sentence imposed by the High Court appears to be so grossly and  

entirely inadequate as to  involve  a failure  of  justice,  this Court  

would be justified in interfering and  enhancing the sentence and  

hence  the  period  undergone  awarded  by  the  High  Court  was  

increased to a period of five years in a case under Section 304  

Part  I  IPC  considering  the  nature  of  offence committed  by the  

accused as  this  Court   has  unequivocally  held  that  in  criminal  

cases,   awarding  of  sentence  is  not   a  mere  formality  and  

whenever this Court is of the view that the sentence awarded is  

wholly   disproportionate  to  the  crime,   it  would  be  justified  in  

substituting it with a sentence of higher degree  and quantum.   

18. It has been held that where the statute has given the  

Court a  choice of sentence  with maximum and minimum limit  

presented, an element of discretion is surely vested with the court  

but this discretion cannot be exercised arbitrarily  or whimsically.  

It will have to be exercised taking into consideration  the gravity

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of offence, the manner in which  it is committed, the age, the sex  

of the accused, in other words the sentence to be awarded will  

have to be  considered   in the background of the fact of each  

case and the Court  while doing so  should bear  in   mind  the  

principle of proportionality that the sentence awarded should be  

neither  excessively harsh nor ridiculously  low.   This was the view  

expressed by a three Judge Bench of this Court  delivered in the  

matter of  Deo Narain Mandal vs. State of U.P.  (2004) 7 SCC  

257, wherein  the trial court  had awarded   a maximum sentence  

of two years R.I. for an  offence   punishable under Section 365 IPC  

but the High Court  reduced the sentence to the period undergone  

(40 days).   A bench of three Judges of this Court  intervened in  

the matter on the ground that the sentence awarded was wholly  

disproportionate to the crime and hence substituted a sentence of  

six months R.I.   Similarly, the ratio of the cases already referred  

to  by Justice Thakur   in his judgment  viz.  State of U.P. vs. Shri  

Kishan (2005) 10 SCC 420;   State of M.P. vs.  Ghanshaym  

Singh (2003) 8 SCC 13 and State of M.P. vs.  Sangaram  and  

Ors. AIR 2006 SC 48  unequivocally  have laid down that  where  

sentence is wholly inadequate, the same may be enhanced  which

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has to be  commensurate with the  gravity of the offence    so that  

it may not amount to failure of justice.    In all these cases, when  

this Court found the sentence awarded by the High Court to be  

wholly disproportionate  to the gravity of offence and considered  

imprisonment   of a longer period which befitted the  gravity of the  

offence committed by the accused, it enhanced  the quantum of  

sentence.

19. It is  most  certainly true that  the award of  punishment  

to  an  accused  in  a  case  wherein  the  guilt  of  the  accused   is  

proved,  is a serious   and important matter and  the same needs  

to be guided by  sound logic  uninfluenced by any   emotional or  

impulsive outburst or  misplaced sympathy that more often than  

not,  manifest itself    in the form of a sentence    that is  either  

much  too heavy and  oppressive  or  wholly in commensurate  

considering  the gravity of the offence committed.  Courts in any  

view have to avoid such extremities  in their approach  specially  

when there is no legislative compulsion or statutory  prescription  

in the form of  a minimum sentence for an offence committed.  

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20. Bearing the aforesaid parameters and the principles  in  

mind  and  in  the  light  of  findings  recorded  concurrently  and  

approved by us,  I have not been able to convince  myself or feel  

persuaded  or find a valid reason why the High Court should have  

reduced the sentence  of two  years awarded by the trial court by  

reducing   it to one year in the wake of  the finding   recorded by  

us also as we have held that all the accused owed a duty of care  

to  the  deceased  persons  since   accused  Sushil  Ansal  and  A-2  

Gopal Ansal were in actual control of the premises and took active  

participation in the day to day management of the theatre.  They  

were the actual decision makers without whose approval no action  

could be undertaken in the premises.  A-1 was the licensee of the  

cinema and had the obligation to run it with due and reasonable  

care.   A-2  as  the  Managing  Director  of  Ansal  Properties  &  

Industries  Ltd  had  exercised  complete  control  over  the  

management of the theatre.  They were the actual beneficiaries of  

the  establishment  who  were  making  out  financial  gains  by  

charging  the  public.   As  persons  in  charge  of  a  public  

entertainment  centre  which  caters  to  the  general  public  they  

owed a duty of care to maintain a safe environment.  It would be

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indeed very far fetched to contend that a person who maintains a  

cinema hall and charges the public a fee for the facility, does not  

owe a duty of care to ensure that the public can enjoy the facility  

in a safe environment.   

21. In the present case every rule in the book had been  

violated  with  impunity,  whether  it  be  the  maintenance  of  the  

transformer, illegal user of the area around the transformer, closure of  

gangways and exit in the balcony.  Not only that the transformer was  

not kept in a safe environment, the area around the transformer had  

been filled with combustible substances so as to aggravate the danger.  

The public announcement system, emergency lights etc which are the  

most basic requirements in the cinema hall were non functional.  On  

top  of  that,  the  illegal  closure  of  exit  in  the  balcony  ensured  that  

patrons could not make a speedy exit.  All these decision were taken by  

A-1 and A-2 who were in active control of the theatre and the premises.  

In  such  a  scenario  it  can  easily  be  said  that  not  only  were  they  

negligent  but  the  negligence  was  of  such  a  high  degree  that  no  

reasonable man would have undertaken such a course specially the  

ones who were dealing in the business of running a cinema theatre  

where the lives of public at large were involved day in and day out as  

visitors to the cinema show.  

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22. The  death  of  the  deceased  in  the  tragedy  occurred due  

to the trap created   for  them  by  A-1  and  A-2  along  with the other  

actors   who   helped   them   achieve that end.  Had the layout of the  

balcony not   been   changed   from the   sanctioned   plan  to  such  an  

extent  that  access  to the  right  hand  exit was  

totally blocked, this tragedy would not have taken place.  Due to the  

blockage of the right hand exit the patrons were forced to use both  

the left hand exits which opened on the smoke filled left hand stairs.

23. The conduct of A-1 and A-2/respondents in these appeals  

was thus in total disregard of all the safety rules meant to contain a  

tragedy of this kind coupled with the knowledge of the 1989 fire  

which had taken place earlier in the Uphaar theatre.  The culpability  

of the accused thus clearly brings them within the four corners of  

Section 304 as it  lies  in  the knowledge that such a tragedy was  

possible and in fact had taken place in 1989 in an identical manner.  

But rather than taking stock of the situation they chose to carry on  

in  the  same  manner  as  before  in  reckless  disregard  to  the  

consequence.   

24. This    shows   that   the appellants / respondents  herein  

Sushil  Ansal and  Gopal Ansal  had    knowledge        that    the

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transformer     located   on   the   ground   floor    was     dangerous  

to the paying    patrons   visiting   the cinema.    This    incident   

clearly established   that   the owners/ directors / Licencee     and  

management   were     aware   of  

the fact that the transformers posed a potential danger of a major  

fire  and  of  the  hall  and  balcony  getting  smoked  up  ‘chimney  

effect’.  Inaction on the part of A-1 and A-2 despite the pendency  

of case regarding suspension of their license continued although a  

major fire had broken out on 06.07.1989 at 11.40 P.M. in identical  

circumstances when both the transformers i.e. the transformer of  

the Cinema as well as the transformer of DESU burnt and smoke  

reached right up to the balcony, but no step was taken to rectify  

the  situation.   The  Licence  was  neither  revoked  nor  was  the  

matter brought to the notice of Hon’ble High Court.  

FAULTY REPAIR OF THE TRANSFORMER  

25. Besides the above, it has further come out in evidence  

led by the CBI  and referred to extensively,  that  the cable  end  

socket of the B phase of LT supply, cable of the transformer had  

not been fixed properly by A-9 (B M Satija), A-10 (A.K. Gera) & A-

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11 (Bir Singh) of DESU. The same had been fixed by hammering  

and  not  by  crimping  machine  or  any  other  proper  system  as  

provided under BIS 1255, 1983. Thus the short circuit resulting in  

the fire could have been avoided had the cables been properly  

repaired. As per the Report of electrical  Inspector NCT of Delhi  

Shri  K.L.  Grover  (EX.  PW 24/A),  the  cable  and  socket  of  “B”  

phase of LT supply cables had not been fixed properly as the same  

appeared  to  have  been  fixed  by  hammering  and  not  by  the  

crimping machine or any other proper system. In his deposition,  

he  has  further  clarified  that  the  LT  PVC  cable  socket  was  not  

crimped as required under the provision of IS Code 1255 of 1983  

r/w sub rule 2 of Rule 29 of Rule 1956. The HT circuits were not  

found provided with protection system. The OCB were acting like  

as manual isolator and not as OCB’s as they could not have been  

tripped automatically in case of abnormal condition of supply. The  

1000  KVA  transformer  was  not  having  sufficient  clearances  as  

required under IS 1886/1967. No arrangement for draining out of  

transformer oil in case of damage/rapture to the transformer was  

found which is mandatory as per the provision of IS 1886/1967 &  

IS 10028/1981.

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26. As is clear from the deposition of PW48 S K Bahl (Addl  

Chief Engineer DVB), the staff of the DVB were obliged to follow  

the  BIS  standard  which  provided  crimping  for  fixing  of  loose  

cables. He deposed that the Crimping Machines are provided for  

the  purpose  of  crimping  the  socket  with  LT  leads  of  the  

transformer. This was only to secure that no loose connections are  

made  which  could  give  rise  to  high  temperature  resulting  in  

burning of leads at times. ….It was obligatory for the staff of DVB  

to follow the Indian Standards & DVB Manual for both installation  

as well as maintenance of substation equipment.

27.        Thus the evidence adduced by the appellant CBI and  

referred to in great detail in support of their appeal establishes  

that due to the faulty repair of the transformer the connection of  

the cable end  socket of the B phase of LT supply remained loose  

which resulted in sparking. This coupled with 1000    KVA current  

which was passing through these bus bars        led to excessive  

heating. This caused a cavity on the B      phase  and melting of  

the upper portion of cable end socket. Thus the cable and socket  

came out  from the bolt  portion and hit  the  radiator  fin  of  the

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transformer. The live conductor of the cable (whose insulation had  

melted due to the heating) formed an opening in the radiator fin  

and the transformer oil gushed out and caught fire.  Reports of KV  

Singh EE Electrical PWD (PW 35/A), Report of Electrical Inspector,  

NCT,  Shri  K.L.  Grover  (PW 24/A),  Report  of  Dr.  Rajinder  Singh  

(CFSL) (PW 64/B)] have been referred to by the appellant CBI in  

their appeal.  The above findings thus have rightly been affirmed  

by the Hon’ble High Court in the impugned judgment.  

28. I  have  further  taken  note  of  the  fact  that  the  

transformer room was not ventilated as per  the prescribed BIS  

Rules. (Clauses 7.3.1.1, 7.3.1.2, 7.3.1.4, 7.9.3 of the BIS rules). In  

fact, the open space above the parapet behind the transformer  

room  from  where  smoke  could  have  easily  gone  outside  the  

building was closed.  Instead of the parapet  as reflected in  the  

sanctioned  plan  there  was  a  full  wall  behind  the  transformer  

effectively trapping the fire and the smoke within the building.  

The sanctioned plan showed a  parapet  behind  the  transformer  

room as per PW 15-Y/11 which is a low wall built along the edge of  

a  roof  or  a  floor  not  more  than 3ft.  in  height”  in  the  Building

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Byelaws 1959. So the height of the wall behind the transformer  

could not have been more than 3 feet according to the sanction  

plan.   But  as  is  clear  from the  various  reports  there  was  full  

fledged  wall  behind  the  transformer.   The  Report  of  MCD  

Engineers (Ex. PW2/A) also states that in the rear a pucca wall  

marked A-B in the existing stilt plan has been constructed in full  

height of building whereas this wall in stilt floor has been shown  

open upto a height of 12 ft  in the sanctioned plan. This was a  

serious violation against the sanctioned building plan. The same  

was reiterated  in  Report  of PWD Engineers  (EX PW29/A)  which  

states that outer wall behind HT/LT room was constructed up to  

the First Floor height instead of 3ft height.  In addition PW2 R.N.  

Gupta (EE) MCD and PW 29 B. S.Randhawa (AE) PWD have also  

deposed that outer wall behind HT transformer and LT room was  

found  constructed  upto  the  first  floor  height  instead  of  3  feet  

height.  

29. I have further noted that A9 to A11 conducted improper  

repair of the DVB Transformer in the morning of 13.6.97 without  

the  help  of  crimping  machine  which  resulted  in  loose

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fitting/connections causing sparking in between the B Phase of the  

transformer, causing a hole in the radiator fin resulting in leakage  

of transformer oil which caught fire on account of the rise in the  

temperature due to the sparking and the improper repairs of the  

transformer which is established from the Repair Report Ex PW  

108/AA, EX PW 40/C: the entry of repair, PW 40 PC Bharadwaj AE  

DVB & PW 44 Bhagwandeen. The contention of B. M. Satija that he  

was not posted in substation zone 1601 is incorrect as is clear  

from Ex.  PW 48 E  which is  a  letter  from S.K.  Bahl  Addl.  Chief  

Engineer to SP CBI (PW 48) dated 30.07.97 in reply to query from  

SP CBI. In reply to query No. 3, he clearly stated that B.M. Satija  

was  entrusted  the  work  of  Substation  zone  1601  of  Dist.  R.K.  

Puram. Uphaar Cinema which substation fell under jurisdiction of  

zone 1601, Capital work order 19.5.1997 vide (Ex PW 43/DC).

CULPABILITY OF THE SUPERVISOR OR INSPECTOR  

30. In the present case, A-9 to A-11 i.e. the Inspectors and  

the  fitter  of  DVB  were  in  charge  of  the  maintenance  of  the  

transformer   which  is  a  hazardous  object.  As  electricians  they  

should have known that by its very nature a transformer of such

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high  capacity  stored  inside  a  building  required  proper  

maintenance and any lapse on their part would endanger the life  

of all the occupant of the building and neighbourhood. The callous  

manner of repair by these accused resulted in the outbreak of fire  

which finally resulted in a  mass tragedy. A-15 is  the Divisional  

Officer with DFS.  It was his duty to inspect the building for the fire  

hazards and ensure that it was a safe place for the public. The  

illegalities and the violations committed by the management of  

the  Cinema  would  not  have  been  possible  without  willful  

dereliction of duty by this accused.  

31. Thus the very persons who had been deputed to keep  

the public safe connived with the management to turn a blind eye  

to the hazards created in the building. The conduct of this accused  

is nothing short of reckless which finally led to the death of 59  

persons as the transformer in question i.e. D.V.B. Transformer did  

not have following safety measures at the time of inspection:

i) The L.T. Side cables from the bus bar did not have clamping  system or any support to the cables.

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ii) The  earth  cable  of  the  transformer  had  been  found  temporarily fitted with the earth strip i.e. twisting of earth  cable.  

iii) There was no cable trench to conceal the cable.  

iv) H.T.  Panel  Board  of  transformer  did  not  have  any  relay  system to trip the transformer in case of any fault.  

v) The  Buchholtz  Relay  system  was  not  fitted  on  the  transformer.  

vi) Temperature meter was not found fitted on the transformer.  

32. The physical examination of D.V.B. transformer reveals  

that the cables on bus bars on L.T. side did not have check nuts.  

Except one lower terminal of phase Y and neutral terminal. The  

check nut of neutral terminal was found in loose condition. The  

blue phase single cable at  the top along with cable-end-socket  

(detached cable) fell down on radiator fin due to constant arching  

sparking at nut bolt portion on bus bar, decoiling effect of cable  

and weight of cable. All coupled together led to eating away of  

metal of cable and socket resulting in U shape cable socket end.  

The physical examination of D.V.B. transformer reveals that the  

cables on bus bars on L.T. Side did not have check nuts. Except

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one lower terminal of phase Y and neutral terminal. The check nut  

of neutral terminal was found in loose condition. The blue phase  

single  cable  at  the  top  along  with  cable-end-socket  (detached  

cable) fell down on radiator fin due to constant arching sparking at  

nut bolt portion on bus bar, decoling effect of cable and weight of  

cable. All coupled together led to eating away of metal of cable  

and socket resulting in U shape cable socket end.  

33. In  fact  PW  48  S  K  Bahl  (Addl.  Chief  Engineer  DVB)  

deposed that as far as substation staff is concerned DVB has Asst.  

Electric  Fitters/  Sr.  Electric  Fitter  who  actually  carry  out  the  

maintenance depending upon the extent  of damage caused to  

such  equipment.   The immediate  officer  for  getting  such  work  

done is  the Junior  Engineer  who has specific  jurisdiction of the  

area as fixed by his officers. The Inspector/JE in their respective  

areas were responsible for 100% check of the substation.  

34. It had come in the evidence that Crimping Machines are  

provided for the purpose of crimping the socket with LT leads of  

the transformer. This is only to secure that no loose connections  

are made which could give rise to high temperature resulting  in

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burning of leads at times. One transformer of 1000 KVA capacity  

was existing in one of the transformer rooms at Uphaar complex  

which was catering to the supply of adjoining localities of Green  

Park, apart from meeting part of the load of Uphaar complex were  

some of the connections have been allowed. It is obligatory for the  

staff of DVB to fllow the Indian Standards & DVB Manual for both  

installation as well as maintenance of substation equipment.  

35. PW 73 Y. P. Singh (Retd.) Member Technical DVB also  

deposed that his post was the highest post on technical side in  

DVB.  He went  to  Uphaar  cinema building on the day the  fire  

incident took place and inspected the place and he deposed that  

as per the sanction order crimping machine was a major factor.  

Crimping machine is never kept in sub station as a stock. It  is  

issued to the person who has to carry on the repairs. It is incorrect  

that the effect of hammer & dye is the same as that of crimping  

machine. In a crimping machine the worker is in a position to put  

required force while crimping the socket, while in case of dye &  

hammer  the  force applied  is  always arbitrary.   A.K.  Gera  A-10  

Gera has contended that he was assigned  Zone 1603 and Uphaar

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was  under  1601  therefore  he  just  accompanied  Satija  and  Bir  

Singh  to  Uphaar  and  not  responsible  for  the  repair  of  the  

Transformer.  In  his  deposition  at  PW40  has  clarified  that  the  

complaint was attended to by whoever was available at the time  

of complaint and not limited to the persons assigned to that zone.  

Zones are demarcated for maintenance but for breakdown there  

is no bifurcation.  

36. PW44 Bhagwan  Deen  Mazdor  DESU deposed  that  on  

13.6.97 he  was  working  as  Mazdoor  in  DESU at  Sector  6  R.K.  

Puram  DESU.  On  13.6.97  and  had  accompanied  B.  M.  Satija,  

Inspector  A.K.  Gera  & Bir  Singh  Sr.  Fitter  and  went  to  Uphaar  

cinema at about 10-10.30 AM.  He had taken tool box along with  

him under the instruction all the three above mentioned officials.  

(The witness correctly identified all the accused in the court). Bir  

Singh opened the shutter of the transformer room where the DVB  

transformer was installed. The socket was changed with the help  

dye and hammer as crimping machine was out of order by all the  

three mentioned above i.e.  Bir  Singh,  Satija  & A.K. Gera.  After  

changing the socket the lead with socket was connected Bus Bar.

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The  entire  repair  work  was  finished  within  45  minutes  

approximately. After replacing the socket and connecting to Bus  

Bar the switch was put on and thereafter electricity supply was  

restored.  

37. In addition to the aforesaid evidence, A-15 H.S. Panwar-

Delhi Fire Service was responsible for issuing NOC from the fire  

safety and means of escape point of view. Though no fire safety  

and means of escape was available as per the standard laid down,  

in the Uphaar Cinema on the date of inspection i.e.  12.5.97 &  

15.5.97 still NOC was issued. On the basis of this NOC, Temporary  

License was issued by the Licensing Authority. (Ex 31/DB & Ex  

31/DC).

38. As a consequence of the aforesaid findings based on the  

analysis of the evidence recorded hereinbefore, sentence of  two  

years awarded by the  trial  court  in  my view was not  fit  to  be  

interfered  with by the High Court and for this reason the appeal  

preferred by the  AVUT is  fit  to  be allowed to the  extent  that  

although  the charge under Section 304 A may not be allowed to  

be converted into 304 Part II by remanding the matter for re-trial

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after the passage of  more than 16 years, yet the sentence  may  

not  be  reduced  which  trivializes  or  minimises  the  gravity  of  

offence to a farce  whereby justice to the cause  appears to be a  

mirage, mockery or a mere tokenism.  In my considered opinion,  

the High Court  has indulged in  misplaced sympathy  by reducing  

the sentence of two years awarded by the Trial Court to one year  

in  spite  of  its  finding  upholding  the  charge  of  gross  criminal  

negligence under Section 304A and other allied Sections which is  

grossly inadequate considering the nature  and gravity of offence  

committed  by  the  appellants  as  also  the  finding  that  I  have  

recorded  hereinabove  due  to  which  their   conviction   under  

Section 304 A, 337, 338 read with 36 IPC has been upheld by us.  

In  our opinion,  the extent of the sentence of two years was thus  

not fit to be  interfered with.   

39. Nevertheless,  the  fact  remains  that  16  years  have  

elapsed in the process of conclusion of the trial and pendency of  

the appeal  and the appellant No.1 Sushil Ansal is now aged more  

than  74  years  and  even  if   the  appellants  are  subjected  to  

undergo the maximum sentence  of two years, it can hardly be  

held  to  be  sufficient  so  as  to  match  with  the  magnitude  and

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gravity of offence for giving rise to the catastrophe  in which  59  

persons lost  their lives  due to reckless and gross criminal act of  

negligence at the instance  of  the appellants.  Therefore, in an  

offence of this nature which can be put some what on par with the  

well-known tragic incident commonly known as ‘Bhopal Gas Leak  

Tragedy’, compensation of high quantum along with sentence  of  

imprisonment   may  meet  the  ends  of  justice  which  must  be  

punitive, deterrent and exemplary  in nature.  However, in this  

context, I also find force in the view taken by the High Court of  

Bombay in the matter  of  State of Maharashtra vs.  Chandra  

Prakash Neshavdev reported in  1991 Cr.L.J.  3187,  wherein  it  

observed  that  it  is  an  essential  necessity  of  public  policy  that  

accused  who  have  committed  crimes  must  be  punished  when  

facts are fresh in the public mind.  If for whatever reasons, the  

judicial process had dragged on for an abnormal point of time and  

the  accused  at  that  stage  is  faced  with  an  adverse  verdict,  it  

would not be in the interest of justice to impose at this point of  

time jail sentence on the accused however serious the facts of the  

case are.  Moreover, the tragic incident in this matter  was the  

consequence of a cumulative negligence at the instance of the

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licensee Sushil Ansal and its executing authority Gopal Ansal as  

also due to the fault in the transformer of the Delhi Vidyut Board  

(DVB) and negligence of their employees which was not repaired  

and  maintained  properly  as  discussed  hereinbefore  and  the  

accused appellants did not make a cautious and realistic attempt  

or used their foresight to foresee such an incident as ultimately  

the aim of the appellants Sushil Ansal and Gopal Ansal in Criminal  

Appeal Nos.597 and 598 of 2010 was to make monetary gain by  

running the theatre.   

40. Hence, I am of the view that the interest of justice to  

some  extent  would  be  served  by  imposing  on  the  accused  

appellants a substantial fine and not merely a jail sentence.  Thus,  

while  the  sentence  of  one  year  imposed  by  the  High  Court  is  

upheld, the additional sentence of one year further while allowing  

the appeal of AVUT, is fit to be substituted by a substantial sum of  

fine to be shared equally by the appellants Sushil Ansal and Gopal  

Ansal  alongwith the DVB which also cannot absolve itself  from  

compensating the victims of Uphaar tragedy represented by the  

AVUT.  

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41. Thus, while I uphold the conviction and  sentence of the  

appellant No.2 Gopal Ansal in Criminal Appeal No.598 of 2010 who  

was   in  fact  conducting  the  business  of  running  the  Uphaar  

Theatre and had greater  degree of responsibility  to ensure safety  

of  the   cinema  viewers,  the  appellant  Sushil  Ansal  in  Criminal  

Appeal  No.597  of  2010  was  primarily  a  licensee  who  was  

conducting the business and running Uphaar Theatre essentially  

through his brother A-2 Gopal Ansal.  Hence, while the sentence of  

one year  awarded in Criminal Appeal No.597 of 2010 to Sushil  

Ansal is fit to be upheld, the sentence already undergone by him  

may be treated as sufficient in the said appeal as he has already  

served major part of the sentence and in spite of dismissal of his  

appeal, he would  at the most  serve  the balance three months  

sentence further along with remission.   

42. But while allowing the appeal of AVUT and CBI, I take  

note of the fact that since Sushil Ansal is now more than 74 years  

old and was running the theatre business essentially along with  

his brother appellant No.2 Gopal Ansal, I consider that the period  

of  enhanced  sentence  in  these  appeals  imposed   on  the

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appellants Sushil Ansal and Gopal Ansal may be substituted  with  

substantial amount of fine to be specified hereinafter and paid in  

the appeal bearing Nos.600-602 of 2010 preferred by AVUT and  

Criminal Appeal Nos.605-616 of 2010 preferred by the CBI which  

shall be shared by the appellant Sushil Ansal and appellant Gopal  

Ansal in equal measure along  with the Delhi Vidyut Board as I  

have upheld the sentence  imposed on their employees too.  My  

view stands fortified by the order passed in the case of Bhopal Gas  

Leak Tragedy where the punishment for criminal negligence  was  

allowed to be  substituted  by substantial  compensation which  

were paid to the victims or their legal representatives.

43. In  view  of  the  candid,  comprehensive,  unblemished  

findings recorded by the trial court, High Court  and upheld by us  

after intensive  and threadbear scrutiny of the evidence led  by  

the  prosecution as also the accused respondents in the Criminal  

Appeal Nos.600-602 of 2010 preferred by the AVUT and Criminal  

Appeal Nos.605-616 of 2010 preferred by the CBI, I  am of  the  

view  that the appeals preferred by the AVUT and CBI are fit to be  

allowed and no leniency deserves to be shown while  awarding

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maximum sentence prescribed  under Section 304 A and other  

allied sections.  Nonetheless one will also have to be pragmatic  

and cannot ignore that the enhancement  of sentence of one year  

to two years to the accused cannot bring  back those who suffered  

and lost their lives in the tragic and the horrific incident.  Thus,  

while I am fully conscious and share the intensity of the agony and  

deep concern of  the AVUT   which has diligently  prosecuted  the  

appeal up to the highest Court, I am of the  view that the ends of  

justice  to  some extent  would  be  met  by  not  merely  awarding  

them sentence  of imprisonment  which I do by dismissing their  

appeals against the judgment  and order  of the High Court   by  

which  a  sentence  of one year  has been awarded to  all  the  

accused, but also by enhancing their sentence but substituting it  

with substantial amount of fine to be used for the public cause in  

the memory of the Uphaar victims.   

43. Hence, in so far as  the Criminal Appeal No.600-602 of  

2010  preferred  by  the  AVUT/Victims  Association  and  the  

prosecution represented by CBI bearing Criminal Appeal Nos.605-

616 of 2010 are concerned, I deem it just and appropriate to allow

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both the appeals by enhancing their sentence upto the maximum  

period of two years prescribed under IPC for offence under Section  

304A but in lieu of the additional period of sentence of one year, a  

substantial  amount  of fine to be specified hereinafter is directed  

to be paid by the appellants Sushil Ansal, Gopal Ansal and DVB in  

view of gross negligence on the part of their employees in order to  

compensate   the  charge  of  criminal  negligence  established  

against these  accused persons.  Hence, the  enhanced  period of  

sentence  of  one year shall be substituted by imposition of the  

amount of fine to be paid by them and I do so by placing reliance  

on the ratio of  the order passed in the well known case of Bhopal  

Gas Leak Tragedy wherein the entire criminal case itself had been  

quashed  by  way  of  settlement  against  the  accused  and  the  

sentence was substituted with heavy amount of  fine which was  

paid to the victims by way of compensation.  However,  in  this  

matter, the appellants have already stood the test of a long drawn  

trial  wherein  they have been convicted and sentenced which I  

have upheld and hence they shall undergo  remaining period of  

sentence imposed under Section 304A along with the fine which  

we propose to impose in the appeals preferred by AVUT and CBI.  

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44. Therefore, for the reasons recorded hereinbefore, I am  

of the view  that  in lieu of  the enhanced sentence  of a period of  

one year which I allow in the appeals preferred by AVUT and CBI,  

the  same  be   substituted  with  a  fine  of  Rs.100  crores  (One  

Hundred Crores) to be shared and paid by A-1 Sushil Ansal and A-

2 Gopal Ansal in equal measure i.e. 50 crores each and 100 crores  

in all and shall be paid by way of a demand draft issued in the  

name  of  the  Secretary  General  of  the  Supreme Court  of  India  

which shall be kept  in a fixed deposit in any nationalised Bank  

and shall be spent  on the construction of a Trauma Centre to be  

built  in the memory of Uphaar Victims  at any suitable place at  

Dwarka  in  New  Delhi  as  we  are  informed  that  Dwarka  is  an  

accident  prone  area  but   does  not  have  any  governmental  

infrastructure  or  public  health  care  centre  to  treat  accident  

victims.  For  this purpose, the State of Delhi as DVB which is/was  

an instrumentality of the State, shall  allot at least five acres of  

land or more at any suitable location at Dwarka within a period of  

four months of this judgment and order on which a trauma centre  

for accident victims alongwith a super speciality department/ ward  

for burn injuries  shall be constructed to be known as the ‘Victims

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of Uphaar Memorial Trauma Centre’  or any other name that  may  

be   suggested  by  the  AVUT/Uphaar  Victims  Association.   This  

trauma centre shall be treated    as  an  extension  centre  of the  

Safdarjung  Hospital, New Delhi which is close to Uphaar Theatre  

and was the accident site which is hard pressed  for space and  

desperately needs expansion considering the enormous number  

of patients who go there for treatment.   The trauma centre to be  

built at Dwarka  shall be treated as an extension centre of  the  

Safdarjung Hospital  to be constructed by the respondent accused  

Sushil  Ansal  and  respondent  accused  Gopal  Ansal  under  the  

supervision of  the  Building  Committee  to  be  constituted  which  

shall include Secretary General of the Supreme Court, Registrar  

Administration of the Supreme Court alongwith a representative of  

the  AVUT  nominated  by  the  Association  and  the  Hospital  

Superintendent, Safdarjung Hospital, New Delhi within a period of  

two years from the date of allotment of the plot of land by the  

State  of  Delhi  which   shall  be  run  and  administered  by  the  

authorities  of  the  Safdarjung  Hospital  Administration  as  its  

extension centre for accident victims.    

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45. In  case,   the  accused  appellants/respondents  herein  

Sushil Ansal and Gopal Ansal fails to deposit the fine as ordered,  

the  land alongwith Uphaar Theatre which is the accident site and  

is still existing  at Green Park and has been seized shall  be put to  

public auction under the supervision of the Building Committee  

referred to hereinbefore and  the proceeds thereof shall be spent  

for  constructing  the  Trauma Centre.  It  will  be open for the  

Building Committee and/or the AVUT in particular  to seek such  

other  or  further  direction  from  this  Court  as  and  when  the  

necessity  arises  in  regard  to  the  construction  operation  and  

administration  of  the  Trauma  Centre.   The  appeals  bearing  

Criminal Appeal Nos.600 to 602 of 2010 preferred by AVUT and  

the appeal preferred by the CBI bearing Criminal Appeal Nos.605  

to 616 of 2010 thus stand  allowed in terms of the aforesaid order  

and direction.  

46. In so far as the other connected Criminal Appeals are  

concerned, I respectfully agree and affirm the judgment and order  

passed by Hon’ble Thakur, J.  Thus, the appeals bearing Nos.597  

and 598 of 2010 preferred by the appellants/respondents Sushil

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Ansal  and Gopal  Ansal  are dismissed except that  the sentence  

imposed  on  the  appellant  No.1 Sushil  Ansal  is  reduced  to  the  

period  already  undergone  considering  his  advanced  age.   The  

other appeals preferred by the officers of DVB bearing Nos.617 to  

627 of 2010 and 604 of 2010 and the employee of Fire Service  

bearing Appeal  Nos.599 of 2010 are  also dismissed as  already  

ordered by Hon’ble Thakur, J. with which I agree.   Consequently,  

the appellants  shall  surrender to serve out the remaining  part of  

their   sentence  and in  view of the appeals  of AVUT and CBI  

bearing Appeal Nos.600 to 602 of 2010 and 605 to 616 of 2010  

having been allowed, who are the respondents Sushil Ansal and  

Gopal Ansal in the appeals preferred by AVUT and the CBI, shall  

deposit the amount of fine imposed hereinbefore expeditiously but  

not later than a period of  three months from the date of receipt of  

a copy of this judgment and order.

        …………………………J

    (Gyan Sudha Misra)

New Delhi,

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March 05  , 2014

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         REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITION

CRIMINAL APPEAL NO.597 OF 2010

Sushil Ansal …Appellant

Versus

State Through CBI …Respondent

(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010,  604/2010, 605-616/2010 and 617-627/2010)

ORDER BY THE COURT

In the light of separate opinions delivered by us in the  

above-mentioned matters, we pass the following order:    

(1) Criminal Appeal No.617 of 2010 (wrongly numbered as  

Criminal  Appeals  No.617-627/2010)  filed  by  B.M  Satija,  

Inspector DVB and Criminal Appeal No.604 of 2010 filed by  

Bir  Singh,  Senior  Fitter,  DVB are  partly  allowed and their  

convictions  altered  to  Sections  337  and  338  read  with

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Section 36 of the IPC. The sentence awarded to them shall,  

however, remain unaltered.   

(2) Criminal Appeals No.597, 598 and 599 of 2010 filed by  

Sushil Ansal, Gopal Ansal and Harsarup Panwar respectively  

in so far as the same assail/challenge the conviction of the  

appellants for offences punishable under  Section 304A read  

with Section 36 of the IPC and Sections 337 and 338 read  

with Section 36 of the IPC shall stand dismissed and their  

conviction affirmed.

(3) Criminal Appeals No.607 to 612 and 614 to 616 of 2010  

filed by the CBI challenging the orders of acquittal  of the  

respondents in those appeals shall stand dismissed.

(4) Criminal Appeals No.597, 598 and 599 of 2010 filed by  

the appellants in those appeals and Criminal Appeals No.605,  

606 and 613 of 2010 filed by the State and Criminal Appeals  

No.600-602 of 2010 filed by the Association of  Victims of  

Uphaar Tragedy to the extent the said appeals involve the  

question  of  quantum  of  sentence  to  be  awarded  to  the

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convicted appellants in the appeals mentioned above shall  

stand referred to a three-Judge Bench.

Registry to place the papers before Hon’ble the Chief  

Justice for constitution of an appropriate Bench.

.………………….……….…..…J.         (T.S. THAKUR)

    ………..…………………..…..…J.              (GYAN SUDHA MISRA)

New Delhi March 5, 2014