The Sentence

This is the full sentence document as announced on November 23, 2007, by the court of Mrs. Mamta Sehgal, Additional Sessions Judge, New Delhi.

IN THE COURT OF MRS MAMTA SEHGAL: ADDL. SESSIONS JUDGE: NEW DELHI

In SC NO. 13/07

Central Bureau of Investigation

VERSUS

1 Sushil Ansal s/o Late Chiranji Lal,

 R/o N-148, Panchsheel Park, New Delhi.

 U/S 304A/337/338 r.w 36 IPC & U/S 14 of

Cinematograph Act

2 Gopal Ansal s/o Late Chiranji Lal,

 R/o H.No.1, 6 Aurangzeb Road,

 New Delhi.

U/S 304A/337/338 r.w 36 IPC & U/S 14 of

Cinematograph Act

3 Rajender Mohan Puri S/o Late Dr. C.L.Puri (Deceased)

 R/o A-1, Gitanjali Enclave,

 New Delhi.

U/S 304 r.w 36 IPC

4 Krishan Lal Malhotra (Deceased )

 S/o Late Shri Chunni Lal,

 R/o 122/B/11A, Gautam Nagar,

 New Delhi-49

U/S 304 r.w 36 IPC

5 Radha Krishan Sharma S/o Late Pandit

 Bishan Dass,R/o C-50/3A, Janakpuri,

 New Delhi

U/S 304 r.w 36 IPC

6 Nirmal Singh Chopra S/o Late Shri

 Narender Singh Chopra, R/o 0/28,

 Lajpat Nagar, IV (Double Storeyed),

 New Delhi.

(Asstt. Manager,Uphar Cinema, Delhi)

U/S 304 r.w 36 IPC

7 Ajit Choudhary S/o Sh.Tek Chand,

 R/o 1659, Sec.10, Gurgaon, Haryana

 (Manager, Uphaar Cinema, Delhi).

U/S 304 r.w 36 IPC

8 Manmohan Uniyal S/o Shri Chintamani

 Uniyal, R/o F-48, Sec.22, Noida, Ghaziabad, U.P

(Gate keeper Uphaar Cinema, Delhi).

U/S 304 r.w 36 IPC

9 Brij Mohan Satija S/o Shri Jeeta Nand,

Inspector, Sub-Station, R.K.Puram

District, Delhi Vidyut Board, Delhi , R/o

1225 C, DDA flats, Beg Sarai,New Mehrauli

Road, New Delhi.

U/S 304 r.w 36 IPC

10Anand Kumar Gera S/o O.P.Gupta,

Inspector,Sub-Station,R.K.Puram

District, Delhi Vidyut Board, Delhi , R/o

E 54, Amar Colony, Lajpat Ngar-II,

New Delhi.

U/S 304 r.w 36 IPC

11Bir Singh S/o Shri Roshan Singh,

Sr.Fitter, Sub-Station,R.K.Puram

District, Delhi Vidyut Board, Delhi,

R/o 407/1, Neb Sarai, New Delhi.

U/S 304 r.w 36 IPC

12.S.N.Dandona, Executive Engineer, (Deceased)

PWD (Retired) R/o 8/50, South Patel

Nagar, New Delhi-8

U/S 304A/337/338 r.w 36 IPC

13. Shyam Sunder Sharma, Administrative

Officer,MunicipalCorporation of Delhi South Zone,

(presently Asstt. Assesse & Collector,

Municipal Corporation of Delhi, R.K. Puram, New Delhi) S/o Late Shri Jagdish Chander Singh,

R/o BE 377, Gali No.7 Hari Nagar,

New Delhi-64.

U/S 304A/337/338 r.w 36 IPC

14.Narayan Dutt Tiwari S/oLate Shri Narottam Tiwari

AO, Municipal Corporation of Delhi, South Zone,

 (Retired) R/o C-1,305, Yamuna Vihar,

 Delhi.

 U/S 304A/337/338 r.w 36 IPC

15.Har Swaroop Panwar S/o Late Shri Khem Chand, Divisional Officer (Retired), DFS, Delhi,

R/o F-1 Fire Station, Bhikaji Cama Place,

New Delhi.

U/S 304A/337/338 r.w 36 IPC

 16. Surender Dutt, S/o Late Dhram Dutt, (Deceased)

Station Officer (retired), DFS, Delhi,

R/o F-2, Fire Station, Bhikaji Cama Place,

New Delhi.

U/S 304A/337/338 r.w 36 IPC

In RC 3 (S) 97 SIC IV ND

 U/S 304/304A/337/338/36 IPC &

U/S 14 of Cinematograph Act 1952 .

ORDER ON SENTENCE

 The accused were convicted vide judgment dated 20.11.07 for causing death of 59 persons and injury to 100 persons. As held in the judgment of conviction that the factors which were the cause of death of 59 persons and injury to 100 persons in Uphaar cinema was installation of transformer in violation of law ,faulty repair of transformer, presence of combustible material in the cinema building,parking of cars near the transformer room, alterations in balcony obstructing egress, structural deviations resulting in closure of escape routes in the building at the time of incident, bolting of the exit doors and absence of fire fighting measures during the exhibition of film in the cinema building. The accused have been held guilty and convicted for the above acts as detailed in the Judgment of conviction.

 Thereafter the convicts have been heard on question of quantum of award of sentence. I consider the question of quantum of sentence for each accused individually.

 First I consider the quantum of sentence for convict Sushil Ansal and convict Gopal Ansal.

These accused were convicted vide judgment dated 20.11.07 for causing death of 59 patrons in the cinema hall by their rash and negligent acts of running the cinema hall in complete violation of the Cinematograph Act and Cinematograph Rules and the sanction plan and building bye-laws. They were held to be responsible for causing deviations in the structure of Uphaar cinema, which deviations became an obstruction in egress of patrons from the balcony and the cinema building. Amongst others, the deviations carried out by the convicts Sushil Ansal and Gopal Ansal were :

a)The right hand exit was totally closed and one gangway was reduced to 1’9″ instead of 3’8″ as required under the rules. The Central exit was catering much more people than the norms of the people for middle exit.

b)The inspection room was converted into 14 seater box against the sanction plan.

c)Virtually no place was left to immediately exit out for the patrons sitting on the top of the right hand side. The facts reveal that those who were sitting on such seats could not exit and died in the incident.

d)A room 12′ X20′ adjoining to the staircase was been found constructed.

 e)The portion above ramp was constructed and was being used as Homeopathy Dispensary of size 20′ X 9′ behind the transformer room.

 f) The outer wall behind HT & LT room, transformer room was constructed upto the first floor height instead of 3′ height.

 g) The outer size of the LT room, transformer room and HT room was as per the sanction plan but the positioning of the partitioning have been shifted resulting in alterations in internal sizes of these rooms.

h) A portion of ticket foyer measuring 20′ X 20′ was converted into Syndicate Bank. The restaurant on the front side was converted into Sanjay Press Office.

i) Mezzanine floor was constructed with R S Joists of timber flooring, which were completely burnt, reported to have been used as offices. The height of this floor was 8′ above the stilt floor.

j) Another small portion with RCC slab was constructed at mid landing of the staircase case at 8′ height above the stilt floor and used as offices.

k)Operator rest room converted into office chamber room.

l) In between the second floor i.e. Projection Room floor and loft floor, a full width door on right side of stair case landing has been provided which has created obstruction for going to terrace.

m)One reception counter of Sarin Associates in the stair case leading to terrace which obstructed the stair case passage.

n) The big hall of the loft level was converted in office cabins by providing wooden partition and was used by Sarin Associates, Supreme Builders, Supreme Promoters, Supreme Marketing(P) Ltd and Vikky Arin Impex (P) Ltd, as per the Board displayed on the wall.

o) Staircases over the loft level was converted into office.

On the question of sentence on behalf of convict Sushil Ansal, it was submitted that the convict has been held guilty for offence under section 304A and section 337 and 338 IPC along with section  of the Cinematographic Act, 1952. The convict has been convicted with the aid of section 36. The convict is not solely responsible for the offence. Several other agencies and the convicts together participated in reaching to the error of judgment, which is held to be criminally negligent.

Shri Naseem submitted that :

1) There was improper repair of transformer on the day of incident

2) There was lack of maintenance of transformer by DESU authorities

3) Deviation in seating arrangement in balcony has been contributed by deceased S.N Dandona and the Licensing Authority.

4) The Fire department also contributed in the matter of grant of permissions.

Shri Naseem then submitted that even for the convict accused Sushil Ansal, life is precious. Convict believes in non-violence. For the offence of section 304A, the sentence prescribed is :

a) custodial punishment of two years

b) or fine

c) or both

It is submitted by Sh. Naseem that law makers were conscious of the contingencies . They did not confine themselves to custodial sentencing like other serious offences. Option of fine has been provided. The purpose of custodial sentence is to save the society from hazards to be committed by convict in the society. There is nothing as far as convict Sushil Ansal is concerned. The convict had been attending the court regularly for more than 10 years. Alternatively Shri Naseem submitted that if the Hon’ble court feels that fine is inappropriate, in that event, the case of the convict is covered both under section 4 of the Probation of Offenders Act as well as section 360 Cr.Pc. The counsel submitted that section 361 Cr. PC says that section 360 Cr.PC is mandatory. If the court feels like refusing the benefit of section 360/361Cr.Pc, then it is a fit case for award of sentence of fine only. The Ld. Counsel submitted that the convict has no criminal history. The convict has already been in custody for 31 days. Already undergone period is another contributing aspect towards the proportionate sentence. The Ld. Counsel submitted that the convict has already suffered the trauma of attending the court for 10 years. The convict be let off with the sentence of fine or the the sentence of probation.

On behalf of convict Gopal Ansal, Shri. Prem Kumar, advocate submitted that prejudice and predictions shouldn’t overtake the judgment. The judges remain unaffected. Neither sentimentality nor anguish of any kind should enter into the arena of the judgment of the judge. The Ld. Counsel submitted that indeed it was a great tragedy, nobody can deny this. The court has to consider what has been done by each convict. The court is to individualize the treatment. Purpose of sentence is to make an offender a non-offender and for that purpose, the legislature has brought certain connotes which has to be given full play. The Ld. Counsel in the course of argument made reference to section 361 and section 360 Cr. P C and also section 235 Cr.P C. The Ld. Counsel insisted that the court should consider first as a matter of duty that in the given facts and circumstances and in relation to each individual convict , whether benefit of probation either under section 360 Cr.P C or under Probation of Offender Act should be extended or not . It is a judicial discretion which is to be exercised keeping in mind the facts of the case and the circumstances of each individual convict. The court should consider the material placed before the court. It shall consider the nature of the offence, the role of convict, how the offence is committed , what is the age of convict, the background of the convict and who are the persons who are dependent upon the convict. By sending the convict to prison no useful purpose will be served. The Ld. Counsel insisted that the convict is entitled to the benefit of probation.

Ld. counsel for the convict Gopal Ansal, Shri Prem Kumar further submitted that it is a very unusual case. It is a case where convict has been joined together without having any common intention or common object or collusion or conspiracy in relation to the commission of offence. In such a case, the court has to be more guarded and to see what exactly is the role played by each convict. Essentially, it is the role of DESU and of the parking contractor which has resulted into such a devastating fire. CBI, unlike the convict Gopal Ansal neither made chairman of DESU nor the policy makers and responsible persons of DESU responsible for installing the transformer inside the cinema building. The fire was aggravated by parking in that area. The parking contractor should have taken care and supervised how the parking was to be done but CBI gave them a clean chit. The criminality of such persons who have been let off cannot be transferred to the convict Gopal Ansal . The charge-sheet filed by CBI says that cinema is run by a company. It is not run by an individual . The company should have been called but the CBI gave them a clean chit. Media has a very vital role to play in the administration of justice. The liability of convict Gopal Ansal in this case is not vicarious. He was neither a director nor a shareholder in 1997. The installation of transformer when he was the director initially was DESU thrust and forcible bargain. In 1989, the transformer initially installed was replaced and transformer of higher voltage was installed. The convict was held responsible and if at all fire had taken place, the court has to keep in mind what was the role of the convict at that point of time. The court has to keep in mind the exact role played by convict Gopal Ansal. The compliance of act and rules were always inspected by various agencies. Regular inspections were carried out. If anything went wrong in the management and day to day supervision of various facilities inside the building, the directors, way back in 1988, can’t be held responsible for what is done at that point of time. He submitted that it is a fit case for probation.

He further argued that when question of probation is to be considered, broadly there are three parameters:

1 motive of commission of crime

2 magnitude of offence

3 character of the offender

These factors the court has to keep in mind. He submitted that it is such a case where many human lives have been lost. This will always weigh in the mind of the judge. Yet there was no motive of the convict. Character of the convict is clean, spotless. The convict is having clean antecedents for the last 60 years. The sentence of probation goes in favour of the convict.

The Ld. Counsel then submitted there was a time when two types of theories which viz. Retributive and denunciatory were relevant. Now the sentencing is on the reformative side. It is not necessary to put the convict in jail.

Lastly Shri Prem Kumar submitted that patrons were coming and watching cinema not only for days and months but for years together. The convict had no idea even in their dream that such an incident will occur. Whatever they did was in accordance with law. Under the circumstances of the case court is bound to call for the report of the Probation officer. He placed reliance upon :

1. 2005 Cri.L.J 3077 (S C)

MCD vs. State of Delhi and another

2. 80 (1999) Delhi Law Times 221

H.P.Vaid vs. Parveen Soni & Ors.

Ld. counsel also relied upon Rules prevalent in Delhi which were enacted in 1960 known as Delhi Probation of Offenders Rules 1960 .

Rule 16 reads as follows

” …..16 Pre-sentence report (1) For the purpose of Sec.14 (a) of the Act, the Probation Officer shall, after making discreet inquiries regarding the offender’s character and antecedents, his social and environmental conditions, the financial and other circumstances of his family , the circumstances in which the alleged offence was committed and any other fact which the court had directed him to enquire into. Put down the relevant fact fully and faithfully in the report as nearly as may be in Form-III …..”

”….26. Enquiry into the character and antecedents (1) Court may direct a Probation Officer to enquire into the character and antecedents of the convict, the circumstances in which the offence was committed and other matters and submit a report on a prescribed date , which should ordinarily be the expected date of delivering judgment…”

In support of his contention he has cited

1. AIR 1979 Supreme Court 964

V.R. Krishna Iyer and O.Chinnappa Reddi, JJ.

Bishnu Deo Shaw vs. State of West Bengal

Ld. Counsel submitted that Hon’ble Supreme Court of India is rejecting in toto the above mentioned two theories of punishment and says that these two theories must not be followed at all.

Ld. Counsel submitted that the mitigating circumstances which should be taken into account are the fact that a person who absolutely had no role to play when the incident happened , this court has to keep in mind while determining the quantum of sentence.

It is submitted that Gopal Ansal is convicted u/s 304 A/337/338/36 IPC r/w section 14 of Cinematograph Act . He is the only male member looking after the family, wife and one grown up daughter of marriageable age . He has deep roots in the society. He is qualified Civil Engineer and member of various institutions . He has been associated with Rotary Club Activities for more than 15 years from 1975 onwards. He has been actively involved in the activities of Rajdhani Builders Association for the last two decades. He has been member of PHD , Chamber of Commerce since over a decade . He is managing trustee of Gyan Bharti Trust involved in various Charitable activities mainly running Gyan Bharti School in Saket, New Delhi. He has been President of Jor Bagh Resident Association for two years and presently Chairman of various business companies involved in the activities of constructions and real estate . He is Chairman and Managing Director of Ansal Build Well Ltd which employs over 10000 people working directly with the company and is providing employment to more than 10,000 families indirectly. That M/s Ansal Build Well group has turnover of approximately 300 Crores with 12000 Shareholders who are benefiting from the performance of the Company. He is suffering from High Blood pressure for over a decade with blood sugar and severe back-ache problem for which I am under continued medication and regular physiotherapy.

Arguments on behalf of CBI by Sh. Y.K Saxena, Special Public Prosecutor

It is submitted that convict were so callous regarding the public safety who had come to watch movie and got trapped in the balcony. In the said incident 59 people lost their lives and 100 suffered injuries . It is submitted that everybody was having knowledge that whatever was being done is taking away so many lives . All the convicts are not entitled to get any mercy. The arguments advanced by defence counsels are baseless. They do not deserve any mercy and they should be awarded deterrent punishment to maximum extent.

It has been submitted on behalf of AVUT that since a tragedy of such a high magnitude happened due to the criminal negligence of the convicts Sushil Ansal and Gopal Ansal, maximum sentence should be imposed.

In support of his contention, he has cited following Judgments :

1 Allauddin Mia and Others Vs. State of Bihar 1989 (3) SCC 5.

2 Ronni V/s State of Maharashtra 1998(3) SCC 625 wherein it has been held

3 ”….judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regard to the aggravating and mitigating circumstances…”

4 Gentela Vidyavardhan Rao & Anr V/s State of Andhra Pradesh AIR 1996 SC 2791wherein it has been held that

5 ”…Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals.. record number of innocent human beings roasted alive by the appellants but by the inhuman manner in which they have plotted the scheme and executed it. What they needed, perhaps, w as only wealth by plundering others. For that motive they designed a scheme with the highest proportion of viciousness….”

6 Rattan Singh V. State of Punjab 1979 (4) SCC 719 wherein it has been held that

7 ”…When a life has been lost and the circumstances of driving are harsh, no compassion can be shown. We do not interfere with the sentence, although the owner is often not morally innocent…”

I have considered the submissions. The deviations with regard to the seating arrangement in the balcony which resulted into the death of many patrons and injuries to many had been affected with greed in mind without taking note of the injury that may be caused to the patrons. The Lt. Governor after having sanctioned 100 seats had withdrawn the same vide notification in 1979 realizing that what had been granted in 1976 was against the will of the legislature as disclosed in Cinematograph Act and the Cinematograph Rules, 1981. Inspite of the withdrawal by the Lt. Governor, the convicts Sushil Ansal and Gopal Ansal continued to insist for the extra seats after changing the gangways and even closing the right hand side exit. Further inspite of the fact that the deviations were noted as far back as in 1983, the convicts failed to remove the same. They instead, in connivance with the administrative authorities continued with the deviations by obtaining permits of short periods instead of regular annual license after due inspection by the authorities concerned. Instead of taking the reports from the appropriate authorities through proper channel ‘No Objection certificates’ were obtained from co-convicts to get temporary permits. The intention of the convicts being, to utilize each and every corner of the cinema building and the auditorium for making more profits without having any regard of the repercussions it will have on the safety of the patrons who visit the cinema hall. These convicts were entrepreneurs who must have obtained such temporary permits after corrupting the officials of the government. An entrepreneur who corrupts the official of the government is a menace to the society. Far from helping the functioning of the government and implementing the laws,such entrepreneurs buy the government officials and break the laws and don’t allow the public policy to be implemented. Such convicts don’t deserve the soft punishment of probation or sentence of fine as has been submitted by learned counsel for the convicts. Even otherwise the conduct of the convicts as has been noted in the judgment of conviction shows that they have no regard for law enacted by the parliament. Once license was obtained for running the cinema, the provisions of law which govern the running of the cinema were thrown into the waste bin. Obtaining approvals from the government authorities was made into a mere formality and it doesn’t justify their acts of completely disregarding the law merely for personal gains. The convicts should have been concious of the fact that they the they are running a public entertainment place where the citizens of the city who visit and know that the building to have the potential to be hazardous, rely implicitly on the owners of the place and the licensing authorities to reassure themselves that all safety requirements to prevent mishaps and their aftermaths have been met. Accidents can take place anywhere, but it is different thing when the provisions of law are given a complete go by and the the cinema building is made into a death trap, ready to burst out anytime.

Even otherwise such convicts don’t deserve any kind of mercy even on the basis of their individual circumstances as has been submitted. The benefit of probation sentence can’t be extended to the convicts. The benefit of the judgments which have cited by the learned Counsel can’t be extended to convicts . The sentence of fine which is an alternative to custodial sentence as per statute is also not just and proportionate to the loss which has been caused to the victims. The fittest sentence in the case of convicts Gopal Ansal and Sushil Ansal is custodial sentence and the sentence of fine. Such sentence will not only guide and reform the convicts but will also deter the other individuals who have the imagination that the government servant can be corrupted and purchased and will tell them that they may also suffer the custodial sentence if they play with the safety of public for personal gains.

Considering that the offence was committed by the convicts with a motive of greed, even the sentence which has been prescribed by the legislature is not sufficient ,I therefore sentence convicts Gopal Ansal and Sushil Ansal the maximum custodial sentence which has been prescribed by the statute viz. Rigorous Imprisonment for a period of two years to each of the convicts Sushil Ansal and Gopal Ansal and fine of Rs. 5000/- each. In default of payment of fine,the convicts shall undergo simple imprisonment for six months.

The convicts have also been convicted under section 337 IPC. I therefore sentence convicts Gopal Ansal and Sushil Ansal the maximum custodial sentence which has been prescribed by the statute viz. Rigorous Imprisonment for a period of six months to each of the convicts Sushil Ansal and Gopal Ansal.

The convicts have also been convicted under section 338 IPC. I sentence convicts Gopal Ansal and Sushil Ansal the maximum custodial sentence which has been prescribed by the statute viz. Rigorous Imprisonment for a period of two years to each of the convicts Sushil Ansal and Gopal Ansal.

The sentences shall run concurrently.

The convicts have also been convicted under section 14 of the Cinematograph Act, 1952. I sentence them to the maximum fine prescribed by law which is 1000/-. After the incident of the fire, the cinema business was closed. Therefore, I impose a fine of Rs. 1000/- each on both the convicts. In default of payment of fine, convicts shall undergo Simple Imprisonment of two months.

The other arguments made by the counsel for the these convicts have already been taken care of in the judgment of conviction.

I now consider the quantum of award of sentence of convicts no.5,6 and 7 R.K Sharma, NS Chopra and Ajit Chaudhary .

These accused were convicted vide judgment dated 20.11.07 for committing breach of duty as managers of cinema hall , by allowing the shows to be run inspite of the violations existing in the cinema building from structural, electrical and fire safety and means of escape point of view which resulted in the death of 59 persons and injury to 100 persons. As held in the Judgment of conviction, the conduct of the managers in running away from the cinema building without ensuring the patrons in the balcony have escaped , was done with the knowledge that the patrons stuck therein will die.

It is submitted on behalf of these convicts that their liabilities are vicarious in nature. It was stated that the convict Ajit Choudhry even helped the patrons in bringing them out and showed them the way to escape. He himself suffered dangerous injuries. After the incident he became asthematic. The real management vested with R.M Puri and K.L Malhotra who have since expired.

For convict R.K Sharma, it was submitted that he is 70 years old and suffers from blood pressure . He can’t walk even for 50 meters. If he is sent to jail, he will die within few months. He is in bad shape as far as his health is concerned.

It was submitted on behalf of convict N.S Chopra that he is father of 2 daughters. One is of marriageable age and other is studying. He is the only earning member of the family. If he is sent to jail, there will be no one to look after the family.

It was submitted on behalf of convict Ajit Choudhry that he is an ex-serviceman. He fought battle of Khemkaran in 1981.

It is submitted by Sh. K.C Chopra, advocate that these convicts are law abiding citizens. No useful purpose will be served by sending them to jail. He also insisted that they should be released under section 360/361 Cr.PC.

I find that, these were the persons who were looking into the day to day exhibition of shows as has been held in the judgment of conviction. It was their duty not to run the show unless the deviations forbidden by law had been removed. It is was their duty to ensure that there were no fire hazards in the building and the building was equipped with fire safety measures to meet an emergency. But they continued with the shows. The show was continued to be exhibited by them inspite of the fact that fire had taken place on day of the incident in the morning. They ran away when they got to know about the fire in the building, without making sure the patrons in the building are rescued with the knowledge that said act will cause death of patrons stuck in the balcony. They have been convicted under section 304 IPC. For such an offence sentence of probation is not available as sentence prescribed is more than 7 years. Considering the gravity of situation, which the victims have suffered, reasonable custodial sentence is a must. The maximum sentence prescribed in the statute is 10 years or with fine or both. The mitigating and individual circumstances of the convicts are of no consequence when one considers the harm caused to the victims and their families who lost their children and relatives. The ends of justice will be met and it will also satisfy the conscience of the family of the victims if the convicts are sentenced to 7 years, rigorous imprisonment each and a fine of Rs. 5000/-each . In default of payment of fine, the convicts shall undergo simple imprisonment of 6 months.

1

I now consider the quantum of award of sentence to convict no.8 Man Mohan Uniyal

The accused was convicted vide Judgment dated 20.11.2007 for causing death of 59 persons by bolting the doors of balcony and running away from the cinema hall without unbolting the same at the time of incident, thus blocking the means of escape of patrons in balcony which had literally become a gas chamber by them.

Ld. Counsel for convict, Shri Ramesh Gupta, Advocate drew my attention to section 235 Cr.PC for giving an opportunity to the convict to be heard on the point of sentence.

”……. Section 235 Cr.PC Judgment of acquittal or conviction:

1 After hearing arguments and points of law ( if any) the Judge shall give a judgment in the case.

2 If the convict is convicted , the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the convict on the question of sentence, and then pass sentence on him according to law. ..”

Ld. Counsel submitted that there is no minimum sentence in 304 IPC. There can be any sentence and it can be only fine . It was submitted that convict has not been convicted for offence u/s 304 IPC alone, he has been convicted with the aid of section 36 IPC itself , therefore, it is in itself a mitigating circumstance. Ld. Counsel submitted that discretion from 0 to 10 years has been given to this court.

Ld. Counsel drew my attention to the judgment in

1. Delhi Law Times Vol.XCIV 537 (DB)

Sunil Mehdiratta vs. Union of India

2. Delhi Probation of Offenders Rules 1960

V. Probation Officers – Duties and responsibilities

It is submitted that everybody knows that media is governing the trial of the case. Trial has to be done by the court and not by the media. They are not responsible to the judicial system. Irresponsible consideration should not be in the mind of court while taking decision . Ld. Counsel emphasized on the word irrelevant consideration. Ld. Counsel submitted that the suitable punishment which this court will make will be to balance between crime committed and punishment. It is submitted that convict had left the duty on 13.6.97, unaware of the fact that such an incident may take place. It is the fact that no patron died inside the auditorium . It is also important consideration which court has to consider that even if he was present he cannot avoid the incident. In anyway convict is convicted u/s 304 IPC and court should keep in mind actual act or omission by every convict so his omission because of which he has been convicted is not such for which severe punishment will keep the balance. He also faced the agony of long trial of 10 years. He is 48 years of age and he remained in custody for 53 days during the trial of the case. He is married having two school going children. He is doing a job of Rs.2000/- per month and also doing some part time job.

It was submitted by Sh. Ramesh Gupta that the only fault of this convict was that he left without giving charge. His fault became an offence since the said act was breach of his duty and was in violation of the provisions of Cinematograph Act. The said act became even more grave, since he left charge without giving responsibility to someone else on a day when the fire had already broken without unbolting the doors . He had knowledge that the building had been engulfed with smoke, and he also had knowledge that the balcony doors had been bolted by him. In these circumstances law imputes knowledge to him that if he leaves without unbolting the doors the patrons inside the balcony will die due to suffocation. It is the duty of the gatekeeper to make sure that the doors are open during exhibition of films as per the provision of law and in case of any emergency to help the patrons to come out. He is the person responsible person for the death of many

persons which blocked the means of escape. Had he not bolted the doors, perhaps many lives would have been saved . He doesn’t deserve any leniency. I therefore sentence the convict Manmohan Unniyal to rigorous imprisonment of seven years and a fine of Rs. 5000/-. In default of payment of fine, convict shall undergo simple imprisonment of six months.

I now consider the quantum of award of sentence for the convicts B.M Satija. A.K Gera and Bir Singh

These accused were convicted vide judgment dated 20.11.07 for not repairing the transformer installed in the cinema building in the right manner, as per the provisions of law with the knowledge, that their action is likely to cause death of the patrons in case fire breaks out, because of faulty repair. These convicts being experts in their field , it was their duty to make sure that safety of the patrons is not endangered due to their actions.

Ld. Counsel for convict B.M Satija, Mr. K.C.Chopra, Advocate submitted that before deciding on question of quantum of sentence Hon’ble Court has to see 3-4 things . That are as follows:

1 What is character of convict

2 What is nature of offence

3 The manner in which the offence has been committed .

4 Whether it was technical offence or there was any criminality or intention involved in it.

5 What effect it had on the society ?

6 whether convict can be reformed , whether the court has to follow reformative theory or deterrent theory.

 Ld. Counsel submitted that as far as Delhi Vidyut Board convict are concerned nobody has seen how the fire started. It was submitted that whole case depend on guess work. It was submitted that whole case depends on the reports given by the technical persons. Some of them have not even seen the burnt transformer . They had seen the report given by the other people and they had seen the photographs only. It is submitted that case is very technical in nature. It is based on guess work.

 It is further submitted that there is no criminality involved in the case. There is no use of violence , force or criminal act or any malicious intention. It was technical lapse and convict involved is the Engineer and he is not a criminal. He has never been involved in any case before and has never been convicted. It is submitted that the plea taken by the convict is that he was not part of the team which conducted the repair at that time. This Hon’ble court has held , if it is so it can be said that he went to perform his duty and was not having any criminal mind for doing such any act which will lead to any such incident. It is submitted that fire had taken place because of lack of protection system , for which other Delhi Vidyut Board officials are responsible who were let off by the CBI for the reasons best known to them. convict is a family man. He is an educated man. He is not a previous convict and has not been involved in any case. He is the only earning member of his family and is father of two school going children. There is nobody to look after the family . No useful purpose will be served by giving any punishment of imprisonment. He be released on probation . He is first offender and benefit of probation should be extended to him. He be given a chance to be careful in future.

Ld. counsel for convict no. 10 Anand Kumar Gera, Shri R P Khatana, advocate drew my attention to Section 304 IPC and submitted that in view of the charge, this court has held convict A K Gera liable under second part of Section 304 IPC for which knowledge is imputed and not intention. This court can award imprisonment of fine only as there is a provision of maximum imprisonment of 10 years or fine or with both. Since, there is no minimum punishment, it is not necessary to send convict to jail even for a day compulsorly as per the provisions of law. Hence, fine should be imposed on convict instead of sending him to Rigorous Imprisonment.

Learned counsel for convict A K Gera drew my attention to the provisions of Section 360 Cr. P.C and submitted that this section provides for the offences in which probation can and cannot be granted. The case of convict falls within the provisions of Section 360 Cr P C as he has been held guilty under Section 304 Part II r/w 36 IPC. Hence, there is no embargo on this court to pass an order of probation.

He further submitted that as per the prosecution case, convict A K Gera, Inspector, Delhi Vidyut Board, had gone to Uphaar Cinema on 13.6.97 to repair the fault occurred in DVB Transformer alongwith B.M. Satija, Inspector and Bir Singh, Senior Electric Fitter and that is why, he has been held guilty under Section 304 Part II r/w Section 36 IPC. He submitted that may be some decision might not have been taken by him correctly and had taken erroneous decision while rectifying the fault.

Learned counsel submitted that convict is suffering from Kidney disease and recently operated on 26.5.2007. The photocopy of medical record of convict is annexed herewith alongwith the application for grant of probation which may kindly be considered while imposing sentence on him. He further submitted that convict A K Gera is a Government Employee and no purpose will be served by sending him to Jail. The convict has an unblemished record and shall suffer irreparable loss in case he is sent to jail. His career will tarnished beyond repair and he will lose his job. The convict has already faced the trial for more than ten years and has been attending the court regularly and has never misused the concession of bail granted to him.

Learned counsel for convict A K Gera submitted that convict is aged 40 years and he is a married man, having three children and he is also having old aged parents. He is the only son, there is nobody to look after his family.

In support of his contention, he has cited judgment titled as B C Goswami Vs. Delhi Administration, 1974 Cri. L. J 243 ( V80 C 95 ) ( SC). Nand Ballabh Pant Vs. State ( Union Territory of Delhi ) 1977 Cr. L.J 549 (SC). 1977 Cri.L.J. 1557 (SC) Mohd. Giasuddin vs. State of Andra Pradesh. 1978 Cri.L.J 641 (SC) N. Venkatakrishna Rao vs. State of Andra Pradesh.

He submitted that in view of the submissions, the convict A K Gera is entitled to get benefit of probation and he may kindly be given chance to reform himself.

Arguments on behalf of convict no.11 Bir Singh by Sh. YP Singh , ld. counsel

During the arguments, Shri Y P Singh, counsel for convict Bir Singh submitted that he is adopting the arguments advanced by Learned counsel for convict A K Gera and benefit of those arguments be extended to this convict also.

He further submitted that provisions of Section 360 Cr P C are not attracted because there is a provision of Section 4 of Probation of Offender’s Act.

Convict Bir Singh has retired from the services. He has suffered the agony of long trial of more than ten years. C.B.I has not properly identified the correct cause of fire. The evidence produced by C.B.I is shaky and doubtful. In view of these facts and circumstances, as stated above, passing of harsh order will not meet the need of justice and will be a multiplication of misery.

Learned defence counsel for convict/ convict submitted that lenient view be taken while imposing sentence on convict.

1 As already held herein before these convicts being government servants and being entrusted with an important duty of repairing transformer in a public place carried it out in the most causal manner. Had these convicts repaired the transformers correctly , may be the incident would not have taken place. These convicts are directly responsible for the occurrence of the incident. Had they repaired the transformer in the right manner and then an accident would have taken place, it would have been different. A government servant is to discharge his duty efficiently and with due care and caution . The duty shouldn’t be taken leisurely where large number of patrons visit.

2 Remaining arguments have been taken care of in the judgment of conviction.

3 Considering the act of the convicts , I find these convicts also to be awarded custodial sentence of Rigorous imprisonment of seven years each and fine of Rs.5000/- each. In default of payment of fine, each convict shall undergo Simple Imprisonment of six months each. The sentence of probation can’t be awarded to them as neither the law permits this nor their acts deserve this. The convicts are sentenced accordingly.

I now consider the quantum of award of sentence of convicts Shyam Sunder Sharma ,N D Tiwari and H S Panwar

These accused were convicted vide judgment dated 20.11.07 for causing death of 59 persons and injury to 100 persons by their rash and negligent acts of granting ‘No Objection Certificates’ without inspecting the cinema hall and by not pointing out the deviations and fire hazards which existed in the cinema building.

Ld. Counsel for the convicts, Shri G.D Sharma submitted that both convicts have been convicted for issuing ”No Objection Certificate” which is also contributory act of number of people. Ld. Counsel also submitted that he adopt the arguments of Sh. Khatana,Ld. counsel for convict AK Gera and Sh. Naseem , Ld. counsel for convict Sushil Ansal. Ld. Counsel submitted that convict Shyam Sunder Sharma has medical problem. He stated that now also he collapsed in the court and was taken for medical aid.

Regarding convict ND Tiwari he submitted that he had retired prior to the day of incident. He is aged about 70years and he is entitled for probation.

Ld. counsel for convict H.S Panwar has submitted that convict is aged 68 years now. He has retired from Delhi Fire service in 1997 after rendering 13 years of meritorious service. Ld. Counsel submitted that he was awarded certain medals . He was awarded fire service medal for meritorious service by President of India . He was awarded Class-I and Class-II commendation certificate for his good work. He put his life in danger in number of fire fighting incidents. As far as his status is concerned he has been involved in social work and welfare of people . He has been President of Delhi Fire Service Association . He has also been President of Residence Welfare association of his block . For five years he has been President of Association. He is suffering number of ailments which include poor eye sight , high blood pressure, heart ailment , arthritis . He has undergone operation of his kidney for removal of stone .

It is submitted that he has number of dependents upon him. His wife who is about 61 years of age is totally dependent upon him besides that he has other family member. His son is in BSF. He has also to look after the family of his son. He is not involved in any other case and not involved in any departmental enquiry in his 30 years of service. He is having very high status and respect in the society. As far as circumstances are concerned under which offence has alleged to have been committed he had inspected the Cinema hall prior to the incident and he had pointed out certain short-comings and those short comings were removed. It is submitted that convict was not in any way directly associated with the fire. Ld counsel submitted that keeping in view his service record , his age and medical record benefit of Probation of Offenders Act be extended to the convict and he be released on Probation.

I find that these accused are the government servants who had a duty to ensure that licenses or permit to exhibit cinema is not to be issued unless the cinema authorities adhere to the rules framed under the Cinematograph Act. Instead of adhering to the rules , they granted ‘No objection certificates’ without pointing out the deviations in the cinema hall. Resultantly instead of annual licences, permits of short intervals were granted from time to time . Such No Objection Certificate inspite of the existence of deviations can’t be issued unless their palms were greased by the cinema authorities. Is is unfortunate that violation of laws for personal gains has become the order of the day and while doing so the welfare and concern of public at large usually takes a back seat. The said convicts not only failed in discharge of its statutory obligations but infact acted in a manner which was hostile and foreign to the discharge of their public duties. Licence and permits were issued in complete disregard of mandatory conditions of inspections and ensuring that the minimum safeguards were provided on the ground. Permits were issued mechanically and perhaps for a price. The causal manner in which such safety requirements were given a go by poorly reflects upon the licensing and regulatory authorities. The betrayal of the trust of the citizens and the civil society reposed in the administration has led to this unavoidable death of 59 innocent persons. These convicts also don’t deserve any leniency as observed for convicts Sushil Ansal and Gopal Ansal. Considering that these convicts were instrumental in allowing the convicts Sushil Ansal and Gopal Ansal to run the cinema building in violation of the laws , I sentence convicts to the maximum punishment prescribed in law viz. Rigourous imprisonment of two years each and a fine of Rs. 5000/- under Section 304A r/w 36 IPC failing which they will undergo simple imprisonment of six months. I also sentence the convicts Shyam Sunder Sharma, N D Tiwari and H S Panwar to undergo Rigorous Imprisonment for a period of six months each under Section 337 r/ w 36 IPC.

I also sentence convicts Rigorous Imprisonment for a period of two years each for an offence under Section 338 r/w 36 IPC.

Keeping in view the contentions made by Learned counsels for convicts, Learned Special Public Prosecutor for CBI and counsel for Association of Victims of Uphaar Tragedy and also keeping in view the age, antecedents of the convicts,

I sentence convicts Gopal Ansal and Sushil Ansal Rigorous Imprisonment for a period of two years each and fine of Rs. 5000/- each for offence under Section 304 A r/w Section 36 IPC. In default of payment of fine,the convicts shall undergo simple imprisonment for six months.

I also sentence convicts Gopal Ansal and Sushil Ansal Rigorous Imprisonment for a period of six months each under Section 337 r/ w 36 IPC.

I also sentence convicts Gopal Ansal and Sushil Ansal Rigorous Imprisonment for a period of two years each for an offence under Section 338 r/w 36 IPC. The sentences shall run concurrently.

I impose a fine of Rs. 1000/- each on both the convicts for offence under Section 14 of Delhi Cinematograph Act, 1952. In default of payment of fine, convicts shall undergo Simple Imprisonment of two months.

I sentence convicts R.K. Sharma, N.S. Chopra, Ajit Choudhary, Managers of Uphaar Cinema to undergo rigorous imprisonment of seven years each and a fine of Rs. 5000/-each for offence under Section 304 IPC r/w 36 IPC. In default of payment of fine, the convicts shall undergo simple imprisonment of 6 months.

I sentence the convict Manmohan Unniyal to rigorous imprisonment of seven years and a fine of Rs. 5000/- for offence under Section 304 r.w 36 IPC. In default of payment of fine, convict shall undergo simple imprisonment of six months.

I sentence convicts B M Satija, A K Gera and Bir Singh to undergo Rigorous imprisonment of seven years each and fine of Rs.5000/- each for offence under Section 304 IPC r/w 36 IPC. In default of payment of fine, each convict shall undergo Simple Imprisonment of six months each. The sentence of probation can’t be awarded to them as neither the law permits this nor their acts deserve this. The convicts are sentenced accordingly.

I sentence convicts H.S Panwar, Shyam Sunder Sharma and N.D Tiwari to undergo Rigourous imprisonment of two years each and a fine of Rs. 5000/- for offence under Section 304 A r/w 36 IPC. IN default of payment of fine, each convict shall undergo simple imprisonment of six months.

I also sentence the convicts Shyam Sunder Sharma, N D Tiwari and H S Panwar to undergo Rigorous Imprisonment for a period of six months each under Section 337 r/ w 36 IPC.

I also sentence convicts Rigorous Imprisonment for a period of two years each for an offence under Section 338 r/w 36 IPC.

All the sentences shall run concurrently. Benefit of Section 428 Cr P C be given to the convicts for the period already undergone by them in Judicial Custody during the trial of case. Jail Superintendent be informed.

Before parting with the case I consider it my solemn duty so that such event is not repeated in any high rise building or public place to direct that there should be further investigation of the offence in terms of section 173(8) Cr.Pc vis-a-vis the persons who have been left out by the CBI in the earlier investigations. The convicts raised grievance to this effect that at the time of arguments on sentencing. An application was filed under Section 319 Cr P C on behalf of Association of Victims of Uphaar Tragedy seeking to summon Shri A K Kanth, the then Deputy Commissioner of Police ( Licensing ) to be tried as an accused on the ground that inspite of the Lieutenant Governor withdrawing the Notification for installation of additional seats in 1979, Deputy Commissioner of Police ( Licensing ) permitted retention of 37 extra seats in the balcony in violation of Cinematograph Act which became a cause for present tragedy in Uphaar Cinema. The application under Section 319 Cr P C stands disposed of by the above directions/observation. CBI will be at liberty to make use of the reports and statements recorded during trial of present case.

I have also made observations herein before in judgment of conviction that even from the office of DCP (Licensing) temporary permits were issued. The due duty was not discharged even by Deputy Commissioner of Police ( Licensing ).

It has also been observed in the judgment that while the reports were sought from the Zonal Engineer of the MCD but instead of submitting the reports after due inspection, Administrative Officers were asked to issue NO Objection Certificate.

As further observed in the Judgment, even the DESU transformer was insisted against the building sanction plan and bye-law.

Therefore, I direct that such persons who were responsible for sorry state of affairs , as pointed out above if alive, must be dealt with in accordance with law .

These directions are necessary since :

If corruption and corrupt practices become part of the functions of the officers/officials of the government , then there can’t be any hope in the future for the betterment of the conditions of the common man. In this country in the scheme of things as they are, there is no premium on honesty. In today’s set up, every thing is a matter of manipulation. The system as it operates is heavily tilted against honest citizens. If the confidence of the public in the system of governance is to be maintained, if the confidence of honest public servant is to be retained, then such government employees who have been instrumental in granting the permits against the legislative desire must be dealt with severely and also by the law so that in future neither any entrepreneur dare to corrupt any official /officer nor the officer/official dare to violate the will of the Parliament, which the basic essence democracy. Every officer and official of the government must act in accordance with the will of the legislature and in the exercise of the discretion vested in them and shouldn’t act in a manner as may frustrate the will of the legislature or may cause any injustice to the public which is the master in a democratic set up. The court must not fail in it’s duty where the administrative authorities have failed to set the law in motion against such corrupt or inefficient violators of will of the legislature .

Such directions should also discourage the other entrepreneurs who have violated the law, may be Municipal Authorities, DDA, Cinematograph Authorities or any other authorities of the government .

Announced in open ( MAMTA SEHGAL )

court on 23.11.2007 Addl. Sessions Judge

New Delhi

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