Written Submissions Of Mr. K.T.S. Tulsi, On Behalf Of AVUT

IN THE COURT OF SMT. MAMTA SEHGAL
LD. ADDL. SESSIONS JUDGE

TIS HAZARI COURTS, NEW DELHI

STATE VERSUS SUSHIL ANSAL & ORS.

FIR NO. RC-3(S)/97/SIC/IV/NEW DELHI

WRITTEN SUBMISSIONS OF MR. K.T.S. TULSI, SENIOR ADVOCATE, ON BEHALF OF THE ASSOCIATION OF VICTIMS OF UPHAAR TRAGEDY (AVUT) IN PERSUANT OF ORDER DATED 19.01.2006

SUBMISSIONS IN BRIEF :

1. The evidence that has come on record against A-1 (Sushil Ansal) and A-2 (Gopal Ansal) reveals that the aforesaid accused acted with gross recklessness and culpable negligence by their dogged refusal and failure to exercise reasonable care so as to make them liable not only u/s 304-A but also u/s 304 of the Indian Penal Code.

2. The death of 59 innocent persons is directly relatable to the rash and negligent acts and omissions of the accused persons, which were performed with such gross negligence and indifference so as to amount to culpable negligence and failure to exercise reasonable and proper care. Their failure to perform the imperative duties cast upon them by statutory rules, are themselves sufficient to establish culpable rashness. It further establishes that they acted with consciousness and the requisite knowledge as the consequences of their acts of omissions and commissions. Death of innocent persons is thus not only contributed by the actions of the said accused but is directly relatable to the overt acts and conscious omissions performed by them.

3. The closure of the right side exit itself renders all the abovenamed-accused persons liable under section 304 Part (ii). The illegal permission obtained by the accused cannot absolve them of the offence. If at all, it can only have the effect of the said authority i.e. the DCP (Licensing) being prosecuted in the similar fashion alongwith the other accused persons, as the authority would be equally liable alongwith the accused under section 304 Part (ii), 304-A and section 36 IPC.

4. The liability of A-5 (RK Sharma), A-6 (NS Chopra), A-7 (Ajit Chaudhary) and A-8 (Manmohan Unniyal) is firmly established in the light of the evidence on record. Not only did these accused flee from the scene, leaving their patrons to die but the fact that they fled knowing that there were no means of escape on account of the deviations nor were there any functional emergency systems to guide their exit. Under these circumstances, the accused can only be said to have full knowledge of the consequences of their acts and omissions, rendering themselves liable under section 304 Part (ii) of the I.P.C.

5. The documentary and oral evidence on record eloquently records the callous and careless manner in which A-9 (B.M. Satija), A-10 (AK Ghera) and A-11 (Bir Singh) acted, knowing the critical importance of electrical work and the consequences of the negligent repair and maintenance.

6. A-13 (Shyam Sunder Sharma) and A-14 (ND Tiwari) who were appointed to public offices had the sacrosanct duty to enforce the rules and were the custodians of public trust and guardians of public safety. Instead of loyalty to duty, they chose to be stooges of the business houses and granted No-objection certificates when they were not empowered and without caring to carry out even pretence of an inspection.

7. The liability of A-15 (DFO, H.S. Panwar) is established as his inspection reports (Ex.31/DB & 31/DC) are conclusively found to be false by CFSL Report (Ex.PW-64/D) leading to the irresistible conclusion that no inspection was in fact carried out. The inspection report seems to have been given only in conspiracy and collusion with A-1 to A-8. It is these inspection reports which were the latest from the point of time of tragedy and became one of the prime causes of death.

8. That with regard to the objection of the accused with regard to the locus standi of the victims of the tragedy to make submissions before this Hon’ble Court, it is submitted that the question is no longer res-integra as the question of locus-standi with regard to the incident has already been decided by the Hon’ble Delhi High Court vide its order dt. 21.5.2003 in Crl. Revision No. 233/03 in which the High Court, relying upon the decision of the Hon’ble Apex Court in J.K. International (2001 (3) SCC 482) has held that the aggrieved person have a right to be heard and accordingly allowed AVUT to participate in the proceedings.

SUBMISSIONS IN DETAIL :

1. The evidence that has come on record against A-1 (Sushil Ansal) and A-2 (Gopal Ansal) reveals that the aforesaid accused acted with gross recklessness and culpable negligence by their dogged refusal and failure to exercise reasonable care so as to make them liable not only u/s 304-A but also u/s 304 of the Indian Penal Code.

1.1 The evidence on record reveals that all the abovesaid accused had the requisite knowledge that their acts were likely to cause deaths of persons sitting in the balcony in general and those sitting on the right side of the balcony in particular. The accused by their acts of omissions enhanced the danger to the lives of the patrons in the case of a fire accident. The acts of omissions were committed by the said accused willfully and with the knowledge of the enhanced danger. The death of 59 persons is the direct and proximate result of the acts and omissions of the accused, thereby making them all liable not only under section 304-A but also under section 304 Part (ii) IPC.

1.2 The overt acts that have been established against A-1 are as under :

(i) Ex. PW-17/DB is the Annual Cinematograph License No. 51 dt. 24.4.1973 showing A-1 as the licensee.

(ii) File Ex. PW-69/CC (Document D-95) – Letter / Application dt. 2.4.1979 from A-1 to DCP (Licensing) informing misplacing of Annual License & seeking issuance of duplicate license and its renewal.

(iii) File Ex. PW-69/CC (Document No. 95) – Affidavit dt. 16.4.1979 in support of the above Application.

(iv) Ex. PW-31/DB is the Proforma Inspection Report (PIR) dt. 12.5.97 that establishes that even one month prior to the tragedy, A-1 was the licensee of the cinema.

(v) Ex. PW-32/A – PIR dt. 9.4.1996 showing A-1 as the licensee.

(vi) Ex. PW-33/E – PIR dt. 22.12.1996 showing A-1 as the licensee.

(vii) Ex. PW-33/H – PIR dt. 14.4.1994 showing A-1 as the licensee.

(viii) Ex. PW-37/M- PIR dt. 20.5.1989 showing A-1 as the licensee.

(ix) Ex. PW-37/P – PIR dt. 14.6.1990 showing A-1 as the licensee.

(x) Ex. PW-37/U – PIR dt. 27.5.1991 showing A-1 as the licensee.

(xi) Ex. PW-37/W – PIR dt. 26.3.1992 showing A-1 as the licensee.

(xii) Ex. PW-37/Z – PIR 29.4.1993 showing A-1 as the licensee.

(xiii) Ex. PW- 50/B is the application supported by affidavit of A-1 for renewal of license from 24.4.92 to 23.4.93. In the affidavit in support of the application, A-1 has shown himself as the occupier and in the covering letter dt. 3.1.92, he has signed as the licensee. This establishes that A-1 had complete control over the day to day affairs of the cinema.

(xiv) Ex. PW-91/B is the copy of the cheque dt. 26.6.95 for Rs. 50 lacs signed by A-1 as authorized signatory of M/s Green Park Theatres Associated Pvt. Ltd. (GPTAL) in favour of himself.

(xv) Ex. PW-103/B25-26 & Ex. PW-103/XX3 are the minutes of the meeting of the Board of Directors by which A-1 was empowered to deposit title deeds and create equitable mortgage on 25.10.94 and 18.3.95. It shows not only that he continued to have intimate connections with the management of the cinema but in fact exercised complete and supreme control over its affairs.

(xvi) Ex. PW-103/XX6 to Ex. PW-103/XX8 are minutes of the meeting of the Board of Directors dt. 24.12.94. Ex. PW-103/XX3 is the minutes of the meeting of the Board of Directors dt. 31.3.95 and 30.6.1995 showing that A-1 continued to attend the meetings of the Board inspite of the fact that he was no longer a director. In these minutes, he is shown to have attended the meetings as a special invitee.

(xvii) PW-103/XX3 are the minutes of the meetings of the Board of Directors dt. 31.12.96 and 28.3.97 which show that A-1 was an authorized signatory of any amount inspite of the fact that he was neither the Chairman nor the MD of the company.

(xviii) File Ex. PW-98/C is the letter dt. 16.12.1996 from the director (A-3, now deceased) of M/s Ansal Theatres & Clubotels Pvt. Ltd. (ATCL) addressed to then DCP (Licensing) informing the change of name of the company from GPTAL to ATCL, however, clarifying that inspite of the change the name of the licensee (i.e. A-1) will remain the same.

1.3 In addition to the above, the following document shows the direct culpability of A-2 :-

(a) Ex PW-98/C – This is the contents of the minutes of the MD’s conference with the covering letters dt. 27.2.97 (Ex. PW-98/X4) 2.4.97 (Ex. PW-98/X2), 1.5.97 (Ex. PW-98/X3) and 7.5.97 (Ex. PW-98/X1). The minutes of these conferences shows that even the following minor managerial issues concerning the cinema were decided by A-2 himself :

(i) Issue of complementary tickets

(ii) Issuance of complimentary drinks and dinner

(iii) Renewing of agreements with various agencies occupying space in the cinema premises

(iv) Repair of chairs

(v) Repair of carpets

(vi) Maintenance and cleanliness

(vii) Maintenance of attendance register

(viii) Approval of expenses for running the cinema

(ix) Communications to Excise Dept.

(x) Issuance of various cheques by virtue of Ex. PW-93/B (cheque dt. 23.5.94), Ex. PW-90/B (cheque dt. 30.11.96) and Ex. PW-90/C (cheque dt. 12.2.97)

The Minutes clearly and categorically indicate that ‘not a nail could be fixed without his prior permission’

1.4 That the culpability of accused A-1 and A-2 alongwith A-4 to A-8 to be convicted under section 304 Part (ii) is clearly borne out from the Fire Reports dt. 6.7.89 (Ex. PW-88/E) 7.7.89 (Ex. PW-88/D) and 13.7.89 (Ex. PW-88/C), which record that a “serious fire” of identical nature took place in the Uphaar Cinema in 1989. The Report dt. 13.7.89 in fact records that the fire took place at the ground floor and involved the transformer of the cinema, transformer of DESU, LT/HT panel board, tripping DC batteries of DESU, cable-shaft and A/C ducts of cinema. Besides, it is also reported that smoke and hot gases affected the main hall, balcony, projection room, rewinding room, screen, furniture and various offices located in the cinema complex.

The reports clearly reflect that the fire was similar in nature to the present case. By way of these exhibits, it is categorically established that the accused persons, A-1 to A-8, had absolute knowledge that owing to the structural deviations carried out in the cinema coupled with the various violations that have been brought out in evidence during the trial, there was every likelihood of a similar occurrence in the future. The factum of knowledge as required under section 304 Part (ii) is thus clearly borne out and conclusively establishes the culpability of these accused persons to be tried under the said section alongwith section 304-A of the Penal Code.

2. The death of 59 innocent persons is directly relatable to the rash and negligent acts and omissions of the accused persons which were performed with such gross negligence and indifference so as to amount to culpable negligence and failure to exercise reasonable and proper care. Their failure to perform the imperative duties cast upon them by statutory rules, are themselves sufficient to establish culpable rashness. It further establishes that they acted with consciousness and the requisite knowledge as the consequences of their acts of omissions and commissions. Death of innocent persons is thus not only contributed by the actions of the said accused but is directly relatable to the overt acts and conscious omissions performed by them.

2.1 That factors which caused the fire and thereafter contributed to its spread consequently resulting in the death due to asphyxiation, of 59 persons can be enumerated as under :

A. Structural Deviations

(i) Installation of transformer in the car parking area

Ex. PW-100/M shows that the transformer was installed with the consent of A-1.

(ii) Parking of cars in front of the transformer

Ex. PW-2/A shows that as per the sanctioned plan, there was provision for only 15 vehicles in the parking area on the ground floor. The space in the front of the transformer was only meant for maneuvering of vehicles and not parking.

Ex. PW-35/A shows that vehicles were parked in front of the transformer which aggravated the spread of fire and smoke.

Ex. PW-56/B shows the issuance of 18 tokens against the prescribed 15. Statement of PW-56, RK Sethi (Parking Contractor) reveals that in addition to the 18 cars against the tokens issued, further 8-10 cars of the staff was also parked.

Ex. PW-15Y/3 are the parking layout plans of 1973 which show a provision for parking only 15 cars.

(iii) Erection of rear wall behind the transformer (Ex. PW-2/A & Ex. PW-29/A in breach of sanctioned plan (Ex. 15 Y/11 – Stilt-floor plan)

(iv) Construction of homeopathy dispensary behind the transformer by blocking portion of the ramp (Ex. PW-2/A ; PW-29/A & Ex. PW-2/AA2 (existing plan of Uphaar cinema)

(v) Renting of portion of the staircase around the liftwell to Sehgal Carpets (Ex. PW-2/A, PW-29/A, PW-39/B)

(vi) Creation of additional floor in violation of the sanctioned plan (Ex. PW-2/A ; 29/A & 39/B)

(vii) Conversion of administrative block into office on the third floor (Ex. PW-2/A, 39/B)

(viii) Full-width door on the right-side of staircase landing. (Ex. PW-2/A, 39/B)

B. Seating Arrangement

Ex. PW-2/A shows that the sanctioned building plans provided for 250 seats in the balcony whereas 302 seats were found to be existing. The same exhibit shows that the inspection room was converted into a box with 18 seats and another box with 8 seats had been provided by closing the right-hand side exit. In this way, 52 seats had been added to the balcony and 26 seats in the box, in flagrant violation of the Building Bye Laws and the sanctioned building plans. Ex. PW-29/A shows that the increase in the number of seats was secured by closing the right-hand side gangway and right-side exit.

C. Gangways

According to Ex. PW-2/A, four gangways of 3’8″ were sanctioned as per Rule 8 of the Schedule of DCR 1953 and Rule 9 of First Schedule of DCR 1981.

What was found on the spot was one gangway reduced from 3’8″ to 1’10½”. The other gangway had been completely blocked. The closure of the gangway and the exits converted smoke-filled pitch-dark balcony into a death trap which became the primary cause of death of 59 persons.

D. Exits

The closure of exits on the right-hand side was in complete breach of Rule 10 of the First Schedule of DCR, 1953 and Rule 12 of the First Schedule of DCR 1981. The closure of these exits increased the travel time and travel distance from the right-hand side. Ex. PW-2/A, PW-29/A and 39/B bear testimony to this tragic violation that was to become the prime cause of the tragedy.

Ex. PW-110/AA20 shows that the application for installation of 8-seater box for their personal use was made by A-2, in complete breach of the statutory responsibility of protecting his patrons.

E. Non functional PA System, Fire Extinguisher, Emergency lights, Exit lights

Ex. PW-64/D proves the absence of emergency lights and the fire extinguisher. The evidence of PW-1, 3, 7, 11, 49 and 85 shows the drastic impact of gross negligence and the manner in which the aforesaid accused discharged their responsibility.

3. The closure of the right side exit itself renders all the abovenamed accused persons liable under section 304 Part (ii). The illegal permission obtained by the accused cannot absolve them of the offence. If at all, it can only have the effect of the said authority i.e. the DCP (Licensing) being prosecuted in the similar fashion alongwith the other accused persons, as the authority would be equally liable alongwith the accused under section 304 Part (ii), 304-A and section 36 IPC.

3.1 The fig-leaf of the permission granted by the then DCP (Licensing) (Ex. PW/29DR) being opposed to not only the letter and spirit of the rules but contrary to and defeating the object of public safety which the rules were to subserve, should be deemed to be void ab-initio.

3.2 The evidence recorded by this Hon’ble Court during the course of this trial clearly shows that the then DCP (Lic) Sh. Amod Kanth, deliberately and knowingly turned a blind eye to the safety regulations to favour the accused-owners of the cinema. The order passed by the DCP was merely based on his own personal knowledge and satisfaction and not on any technical advice or no-objections. The DCP (Lic) had complete knowledge of the fact that the grant of permission to close the exit and gangway would amount to compromising the safety of the visiting public and denying them the egress in terms of the safety rules as envisaged in the Acts and Rules. Yet, he chose to act in a most callous manner, ignoring the technical advice.

3.3 The culpability of Sh. Amod Kanth to be summoned as an accused is established by the following :

(a) That on 30.09.1976 Delhi Administration issued a notification no. F2/ 45/75-FIN(G) dt. 30.09.1976 (Ex. PW 29/DC) by which Uphaar Cinema was allowed to install additional 43 seats in the balcony and 57 seats in the auditorium of the cinema hall as concession to cinema owners for reduction in rates to cinema tickets and also to compensate entertainment tax department

(b) That on 28.07.1979 after issue of the notification no. F2/45/75-PPI the DCP (Lic. ) dt. 27.07.79 (Ex. PW 29/DP) was issued to Uphaar cinema directing them to withdraw the additional seats granted vide notification no. F2/45/75-FIN(G) dt. 30.09.1976.

(c) Against this Uphaar Cinema and others filed a Writ Petition no. 1010 of 1979 on 02.08.1979 in the Delhi High Court and obtained stay on 02.09.1979.

(d) On 05.10.1979 as directed by the Hon’ble High Court A. K. Kanth, DCP (Lic.) alongwith other technical authorities inspected the Uphaar cinema building.

(e) On 08.10.1979 the DCP (Lic.) in the report of Joint Inspection Team w.r.t. removal/ retention of additional seats in Cinema Houses of Delhi, stated that in pursuance of the directives of Hon’ble High Court, till the decision of the Writ Petition all the seats falling in the gangways should be removed so as to avoid the happening of any untoward incident and for the patrons to have egress.

(f) On 22.10.1979, an affidavit was filed in CWP No. 1010/79, by the then DCP (Licensing), Sh. A.K. Kanth, pursuant to his personal visit to the cinema hall, raising objections with respect to the closure of gangways by blocking the same with additional seats, being a fire and health hazard as it increased the travel distance to the exit, besides being in violation of the provisions of the Act & the Rules.

(g) On 29.11.1979 the Division Bench of the Hon’ble High Court Delhi disposed of the Writ Petition no. 1010/79 holding that Government should re- examine the seating capacity of all the Cinema halls and decide accordingly.

(h) On 06.12.1979 A. K. Kant DCP (Lic.) issued show cause notice for removal of all the 100 additional seats highlighting that since the additional seats are in gross violation in relation to the gangways, accommodation and seating in the Cinema Hall. (File Ex. PW69/AA – Doc. No. D-93)

(i) That on 13.12.1979 the Uphaar Cinema Management in reply to the show cause notice gave their representation stating that all the additional seats are within the rules which were carefully examined by the DCP(Lic.) (Ex. PW-110/AA2)

(j) That on 17.12.1979 DCP (Lic.) sent another letter to Uphaar Cinema management giving them another opportunity of hearing.

(k) On 19.12.1979 A. K. Kanth DCP (Lic) alongwith technical authorities again inspected the Uphaar Cinema.

(l) That on 20.12.1979 Representation was once again examined by the DCP (Lic.).

(m) On 24.12.1979 A. K. Kanth DCP (Lic) passed an order DCP/Lin/16245 (Ex. PW-29/DR) allowing retention of 37 additional seats which he found to be in substantial compliance of the rules and as per his own personal satisfaction pursuant to the spot inspection by Sh. A. K. Kanth DCP (Lic) and also after hearing the licensee personally.

It is noteworthy that the said permission was a complete turnaround from the earlier stand taken before the Hon’ble High Court on affidavit in CWP 1010/79.

3.4 The aforesaid sequence of events clearly establish that the DCP took a complete turnaround from his stand taken from his own earlier affidavit in WP No. 1010/79, and applied different standards with regard to the safety for the occupants of the hall on the one hand and the balcony on the other.

3.5 It is relevant to the bring to the notice of this Hon’ble Court that the Hon’ble High Court of Delhi in C.W.P. No. 4567/97, dealing with the same tragedy for awarding exemplary damages and compensation to the victims, by the responsible violators, held the role of the then DCP (Licensing) to be in clear violation of the statutory safety rules. The relevant observation of the Hon’ble Court with respect to the role of the then DCP (Licensing) is being reproduced as unde r:

“It is thus clear that most of the violations which existed in the cinema hall and due to which the license was suspended for a period of four days in 1983 existed even upto the date of the unfortunate incident of fire. In these objections mentioned by DCP (Licensing) in his affidavit of 1^st August, 1996, the violations about the closure of the vertical gangway by the side of the wall reducing the width of the gangways, closure of the exits on the rear side of the balcony etc. were not pointed out, perhaps for the reasons that they were approved by the DCP (Licensing) himself. The authorities had closed their eyes to the violation of the rules and regulations existing in the theatre. We are, therefore, clearly of the view that scant respect had been shown to the adherence of the safety regulations. Safety of the patrons appears to be the last item in the agenda of the management of the cinema and every effort was made by the owners of the cinema to add as many seats as possible so as to earn more profit. With a view not to influence the criminal trial going on against certain persons, we are not, at this stage, suggesting that there was any connivance or collusion between the owners of the cinema and the licensing authority permitting the owners to add those seats and close the rear right side exit of the balcony. However, it appears to us that the authorities were definitely not strict and vigilant in compliance of the regulations meant for the safety of the patrons. We are of the view that had the right side rear exit been open and the right side vertical gangway by the side of the wall was available to the patrons to get out of the cinema hall, there would not have been delay in these patrons coming out of the balcony and precious time would not have been lost and maybe many of the persons who had died because of fresh oxygen not being available to them and due to asphyxiation, might have been saved. Since the criminal trial is going on against the owners of the cinema and certain other persons, we refrain ourselves from giving any opinion as to whether there was any negligence or connivance on part of any of the authorities in adding these seats and in not providing the gangway and the exits at places where they are meant to be provided and whether the owners and other authorities were aware that by not providing the gangways and exits at the places where they are meant to be, and by adding these seats, safety of the patrons were endangered”.

3.6 It is submitted that an application under section 319 of the Code of Criminal Procedure was filed by AVUT before this Hon’ble Court on 11.2.2004 for summoning Sh. A.K. Kanth, IPS as an accused. This Hon’ble Court heard the concerned parties and on 14.7.2004, was pleased to hold that ‘it will not be in the interest of justice to decide this application at this stage. Considering the evidence at this stage may lead to expression of opinion on some aspects on merit and may prejudice the accused persons facing the trial. So this is in the interest of fair trial that the matter may be considered at the time of final arguments when the evidence will be considered on all prospects”

3.7 That this Hon’ble Court perhaps rightly postponed the decision in view of the vehement opposition by the accused that any expression of opinion on merits of the case may, even in the context of an order under section 319, prejudice their defence. Besides, since the defence evidence was yet to be led, it was not certain as to the nature of evidence that may be brought by the accused, which might have a bearing on the culpability of Sh. Amod Kanth.

3.8 In view of the documents referred to in Para 3.3 above, and are either exhibited documents before this Hon’ble Court or are part of judicial proceedings, this Hon’ble Court can take judicial notice of them.

3.9 The show-cause notice issued by the then DCP (Licensing) dt. 6.12.1979 (File Ex. PW-69/AA) claimed that all the 43 seats in the balcony and the 57 seats in the hall were in contravention of the Cinematograph Rules which were referred to in the notice. The DCP (L), in the show-cause notice, himself says that the High Court had directed him to take a decision regarding the removal of seats which “violate the specifications.”

The reply to the show-cause notice given by A-2 on 13.12.1979 (Ex. PW-110/AA2) claimed that the additional seats installed by them were within the rules. Thus, at the time when the show-cause notice was given and the reply was received, neither the DCP (L) nor A-2 set up the case of substantial compliance.

Although the order dt. 24.12.1979 (Ex. PW-29/DR) stated that retention of seats in the balcony was in substantial compliance, the High Court found that it was only a paper compliance and not substantial compliance of the rules.

3.10 The accused have extensively cross-examined the prosecution witnesses which proved the documents of PWD and DCP (Licensing). The principle line of cross-examination of the ld. counsel for various acused has been that all the seats that were provided in the balcony were as per the approval of the competent authorities. The second limb of cross-examination relies heavily on the notification of 1979 (Ex. PW-29/DP), W.P. No. 1010/79, the order of the High Court directing the DCP to reconsider the increase of seats and the order of the DCP dt. 24.12.1979 (Ex. PW-29/DR). In the cross-examination, the ld. counsel have further suggested to all the concerned witnesses that the order of the then DCP was in substantial compliance and the number of seats and the gangways were as per the rules and as per the permission granted to them.

3.11 The defence of the accused, therefore, essentially depends upon the validity of various permissions including the permission dt. 24.12.1979 (Ex. PW-29/DR). If the said order is held to be prima facie valid and in substantial compliance of the rules, by this Hon’ble Court, it would provide not only a valid defence to the accused proposed to be summoned but also to A-1 and A-2.

3.12 It is, however, brought to the kind notice of this Ho’ble Court that in the Crl. Revision filed by A-1 in the Hon’ble High Court bearing Crl. R. No. 238/01 decided on 11.9.2001, the Hon’ble High Court not only found the closure of the gangway and exit on the right-hand side to be the principle cause of death, but also that the order permitting their closure was criminal in nature. In this regard, the following findings of the Hon’ble High Court are referred :

“The non-availability of rapid dispersal facilities in the balcony on account of absence of emergency lights, public address system, fire alarm system, adequate number of gangways leading upto exit doors and non-availability of the second staircase converted the balcony into a mouse-trap……………In case there had been no fire in the DVB transformer, no spillage of oil upto vehicles, no wall obstructing the smoke and gases and no obstructions in rapid dispersal from the balcony, no death or injury would have been caused to anyone…….”

“Those who establish and run public places are expected to exercise a very high degree of care for the safety of those who visit such places believing that everything required to be done for their safety and protection is in place. It is absolutely criminal to take any chance in the matter of public safety and betray the trust and confidence of unsuspecting innocent public. Foreseeability of the risk is always a relevant factor to be considered. The cinema management ought to have foreseen that in the event of some untoward incident, the patrons in the balcony had no adequate facilities for safe and quick escape. It would be too liberal an approach for this court to say that the negligence on the part of the cinema management and others was not so gross as to hold it ‘not culpable’……”

3.13 The plea of substantial compliance was comprehensively rejected by the Division Bench of the Hon’ble Court vide its Judgment dt. 24.4.2003 in C.W.P. No. 4567/97, by holding that the closure of gangway and exits on the right side and creation of exits only on one side of the balcony was only a compliance with regard to the rules providing the number of exits, only on paper, but the same cannot be said to be substantial compliance of the rules as the exits are required to be provided on all sides of the balcony, to ensure that persons sitting in the hall and the balcony have easy egress there from.

3.14 It is apparent from the various exhibits referred to above that while A-1 and A-2 had financial gain at heart, the DCP(L) took a complete turnaround from his earlier stand taken before the High Court, with regard to the safety. This could happen only because A-1 and A-2 as well as the DCP(L) came to acquire a common intention to help the owners of the cinema in their desire for additional financial gain, without caring a fig about the safety of patrons sitting in the balcony, particularly on the right side of it.

3.15 It has now become clear that the investigating agency deliberately concealed the documents which established the culpability of the then DCP (L), perhaps for the reason that he was holding a senior position in the CBI itself for a considerable amount of time. The evidence now establishes that the then DCP (L) in fact played a pivotal role in granting the permission for closing the gangway and exit which became the principle cause for the death of 59 unfortunate victims. It is submitted that the entire criminal trial would lose its legitimacy and purpose, for the person played the most important role in the closure of exists is excluded from the trial.

3.16 It is submitted that the interest of justice, therefore, requires that since cogent evidence has already come on record with regard to the principle cause of the tragedy being the closure of exits and gangways, the then DCP (Licensing) should be tried alongwith A-1 and A-2 as all three of them are equally responsible for the same.

3.17 The ld. counsel appearing for the then DCP (L) does not have the locus standi at this stage with regard to the decision on the application under section 319. It has been held by the Hon’ble Supreme Court in the case of Chandradeo Singh (1964 (1) SCR 639) that “accused person does not come into the picture at all till the process is issued. Whatever defence the accused may have can only be inquired into at the trial…….permitting an accused person to intervene during the inquiry would frustrate its very object and that is why the legislature has made no specific provision of permitting an accused to take part in the inquiry……

3.18 There is no doubt that this Hon’ble Court must balance the rights of the accused who are undergoing trial with the interest of justice. The accused who are undergoing trial may reasonably argue that in event of summoning accused their trial would be unduly delayed resulting in prolonging their agony, on the other hand this Hon,ble court has rightly observed that no person against whom evidence has come on record must go scot free only for the reason that it will result in delay.

Section 299 Cr Pc provides a solution to this kind of dilemma. If this Hon,ble court comes to the conclusion that there is cogent evidence against another accused who is an integral part of the tragedy, such an accused can be brought to the book without causing delay to the conclusion of the trial. Section 299 Cr Pc empowers this Hon,ble court to order separation of trial of the newly summoned accused on the grounds that he cannot be brought to trial without “an amount of delay, expense or inconvenience which would be unreasonable” .

Thus this Hon,ble court will be able to strike the balance between the rights of the existing accused and the liability of the future accused and uphold majesty of law in respect of all.

It is submitted that section 299 Cr Pc is an exception to section 33 of the Evidence Act and even in the separated trial the evidence of the accused recorded in the present trial by affording an opportunity to the new accused for cross examining. However, such proceeding against newly added accused would not under these circumstances hold up the trial against the existing accused.

4. The liability of A-5 (RK Sharma), A-6 (NS Chopra), A-7 (Ajit Chaudhary) and A-8 (Manmohan Unniyal) is firmly established in the light of the evidence on record. Not only did these accused flee from the scene, leaving their patrons to die but the fact that they fled knowing that there were no means of escape on account of the deviations nor were there any functional emergency systems to guide their exit. Under these circumstances, the accused can only be said to have full knowledge of the consequences of their acts and omissions, rendering themselves liable under section 304 Part (ii) of the I.P.C.

4.1 A-5 to A-7 are the managers of the cinema, who were the custodians of their paying public and were aware that there were serious structural deviations in the building, exit had been closed, gangways had been blocked, emergency lights were non-functional, PA System was dead and yet instead of adopting whatever other means that were available for warning the patrons, they chose to fled away from the place and lost almost 15 minutes of precious time in informing the fire service. This act on the part of the said accused persons is in direct contravention to Rule 18(9)(iv) of First Schedule of DCR 1981. Ex. PW-35A shows the critical delay in switching off the blowers to prevent the spread of smoke and Ex. PW-96/E shows that the first call to the fire brigade was made at 5.10 p.m. whereas the fire started between 4.55 to 5.00 p.m. It is this fateful delay that proved fatal for 59 persons.

4.2 A-8, the gatekeeper, neither held anybody’s hand nor used his torch on the failure of emergency lights. He simply did the disappearance act thereby ruling out the possibility of saving people groping in the dark and fighting for breath. Whether he fled after the fire or before the fire is of little consequence because the outcome of his absence provide that the exit doors remained shut and there was no torch which could pierce the darkness.

4.3 The evidence of gross negligence on the part of these accused persons eloquently reveals the state of affairs in the form of the depositions of PW-1, 3, 5, 7, 11, 12, 14, 52, 63, and 97.

5. The documentary and oral evidence on record eloquently records the callous and careless manner in which A-9 (B.M. Satija), A-10 (AK Ghera) and A-11 (Bir Singh) acted, knowing the critical importance of electrical work and the consequences of the negligent repair and maintenance.

5.1 A-9, A-10 and A-11 are the immediate authors of the tragedy. Ex. PW-24/A eloquently records the callous and careless manner in which the transformer was repaired. Being qualified technical hand and knowing the critical importance of electrical work in enclosed places where large number of public assembles, the shoddy manner in which the cables were fixed became the death warrant for 59 innocent persons. Ex. PW-24/A and Ex. PW-26/D-1 reveals that no crimping machine as required under clause 12.5.3.5 of the ISI Code was used for fixing the cables and instead the cables were fixed by hammering. Ex. PW-24/DA, 26/D1, 35/A, 48/A, 64/D seal every escape route that this accused may seek. The statements of PW-24, 26, 40, 44, 48 and 73 conclusively establish that these accused were not only grossly negligent in the manner in which they repaired the transformer but had the requisite knowledge that by such negligent approach, the lives of number of persons could be endangered.

6. A-13 (Shyam Sunder Sharma) and A-14 (ND Tiwari) who were appointed to public offices had the sacrosanct duty to enforce the rules and were the custodians of public trust and guardians of public safety. Instead of loyalty to duty, they chose to be stooges of the business houses and granted No-objection certificates when they were not empowered and without caring to carry out even pretence of an inspection.

6.1 A perusal of the No-objection Certificate (Ex. PW-2AA/26) issued by A-13, who was the Administrative Officer of MCD, for the year 1995-96 for the purpose of issuance of the Annual Cinematograph license to the cinema, reveals that not only was he neither competent nor authorized to issue the same as Rule 14(1)(a) of the DCR, 1981 makes it categorically clear that it is only the Executive Engineer who is competent to issue an NOC.

6.2 That similarly, the NOC (Ex. PW-2AA/27) issued by A-14 for the year 1996-97 also was patently illegal in so far as he was also not competent or authorized to issue the same.

6.3 The evidence led by PW-22 and PW-23 also reveals that the above NOCs were issued without even conducting any physical inspection as statutorily required before issuance of an NOC. The factum on non-authorisation coupled with not even a pretence of an inspection having been carried out, is enough to render the said accused persons liable under section 304 Part (ii) of the Penal Code as being responsible Government officials, they had adequate knowledge as to the consequences of their ill-actions.

7. The liability of A-15 (DFO, H.S. Panwar) is established as his inspection reports (Ex.31/DB & 31/DC) are conclusively found to be false by CFSL Report (Ex.PW-64/D) leading to the irresistible conclusion that no inspection was in fact carried out. The inspection report seems to have been given only in conspiracy and collusion with A-1 to A-8. It is these inspection reports which were the latest from the point of time of tragedy and became one of the prime causes of death.

7.1 The CFSL Report (Ex. 64/D) has found that there was no emergency light system in the auditorium and the balcony whereas the report (Ex. PW-31/DB) of A-15 records in his own hand, “Yes” against the same.

7.2 That with regard to the fire extinguisher, the report of CFSL is that neither the water-type nor the dry-type extinguisher was in working order, whereas the accused has mechanically recorded the same to have been provided. With regard to the soda-type extinguishers, the same were found to be leaking at the time as per the CFSL report, no such observation is recorded by A-15.

7.3 A-15, in his inspection report (Ex. PW-31/DC) has recorded that the department had no objection to the renewal of the license of the above-mentioned cinema from the fire safety and means of escape points of view. The conduct of the accused is in complete contravention and in direct violation to Rule 5 of the Delhi Fire Prevention and Fire Safety Rules, 1987 and as such renders the accused liable not only section 304A but in addition under section 304 Part (ii) as well.

7.4 The statement of PW-85, with regard to the Public Address System having been non-functional for quite some time and that he had informed the fact that they were non-functional to A-4, also shows that the inspection reports were simply paper transactions to aid and assist A-1 to A-8 in the illegal running of the cinema, without caring to ensure that the safety rules were strictly adhered to.

7.5 That most importantly, the culpability and collusion of A-15 with A-1 to A-8 is categorically borne out from the fact that on 22.12.1996, when A-15 is supposed to have conducted the inspection of the cinema and signed the Inspection Proforma (Ex. PW-33/E), he was on leave, which is borne out from the Casual Leave Register (Ex. PW-88/J).

8. That with regard to the objection of the accused with regard to the locus standi of the victims of the tragedy to make submissions before this Hon’ble Court, it is submitted that the question is no longer res-integra as the question of locus-standi with regard to the incident has already been decided by the Hon’ble Delhi High Court vide its order dt. 21.5.2003 in Crl. Revision No. 233/03 in which the High Court, relying upon the decision of the Hon’ble Apex Court in J.K. International (2001 (3) SCC 482) has held that the aggrieved person have a right to be heard and accordingly allowed AVUT to participate in the proceedings.

K.T.S. TULSI

 

Sr. Advocate

 

Dated : 6.01.2007