EXCERPTS OF THE JUDGEMENT OF THE HON’BLE HIGH COURT PASSED BY JUSTICE S RAVINDRA BHAT, DATED 19.12.2008 ( UPHAAR FIRE TRAGEDY) WITH REGARD TO SUSHIL ANSAL & GOPAL ANSAL .

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7.89 Before discussing the relevant findings under arguments made, itwould be necessary to briefly notice the standards spelt out by law in thisregard. In the first part of this judgment, this Court had analyzed theevidence and held that the positioning of the transformer and permitting it to be installed was a voluntary action, without any element of coercion, and without authority of law since no permission was obtained in that regard from the MCD or the licensing authority.

9.63 The first two accused were concededly directors of the company and had engaged themselves on day to day functioning. Their involvement in the company continued even thereafter. If one were to take their argument on its face value there was no occasion for Sushil Ansal to continue being described as a licensee even in 1992 or hold himself out as such. He not only did so but permitted the company to do so, as well as the statutory authorities issuing no objections as well as approvals who described the licensee of the original license No.51 i.e. Sushil Ansal as the licensee or occupier of the cinema hall. Significantly enough he withdrew a large amount of Rs.50 lakhs in 1995 from the account of the company. As held by the trial court he was called as a special invitee to attend the meeting of Board of Directors. He along with Gopal Ansal continued to enjoy unlimited power to withdraw the amounts and operate the accounts of the company. Both of them were also authorized right up to the date of incident to operate such accounts and also create liabilities upon the company’s property.

9.64 The position so far as Gopal Ansal is concerned is identical. According to the Minutes/Board Resolution Book produced in Court Ex. PW 103/XX3, he resigned from the company on 30.06.1995. He continued to enjoy same powers and almost unlimited powers to withdraw amounts and operate accounts of the company. He was not fettered in terms of accountability to the company for the moneys withdrawn and utilized by him. Further to this, in at least two instances the bank accounts were operated ostensibly for the personal use of the Gopal Ansal have been placed on record.

9.65 The licenses even after the name of GPT changed in 1996 continued to remain that of the original license i.e. Sushil Ansal as is evident from Ex. PW 69/CC dated 16.12.1996. The letter dated 06.03.1997 by the licensing authority merely records that Shri R.M. Puri and Shri K.L. Malhotra would be authorized signatory for the company for operating the cinema and for dealing with the licensing authority. These cannot led to an inference that a specific nomination, in terms of Section 10 (2) was ever made.

9.66 The shareholding pattern of the company, disclosed through the Ex. PW 87/53 A, set of documents showed that the major/pre-dominant shareholding of the company continued to remain with the Ansal?s family. Sometime Sushil Ansal and his family members were shown majority shareholders and another time other members of the family such as brothers were shown as shareholders. However, at no time any outsider was shown to hold any of the 5000 shares. These clearly pointed out that the company was closely owned and completely controlled by the Ansal’s family. The change of name of the company from GPT to Ansal?s Theatres and Clubotels (P) Ltd., likewise seems to be very fluid because since the licenses renewed and substituting (25.03.1996, 27.06.1996, 13.09.1996, 26.11.1996) till the date of the incident was in the name of GPT as is evident by Ex. PW 69/CC. Furthermore crucially the evidence of PW 109 Pranav Ansal, one of the directors of the company as on the date of the incident as well as PW 113 V.K. Aggarwal, another director discloses their complete innocence about the affairs of the concern or the cinema enterprise. The minutes of the company reports filed with the Registrar and produced by him (Ex. PW 87/D-54), the said Pranav Ansal and V.K. Aggarwal were shown as Directors.

9.67 The depositions of Pranav Ansal (PW 109), according to the records of the company, was its director from 29.06.1996 till 28.03.1997, Subhash Verma (PW 114) who was a Director of the company as on the date of the incident, V.K. Aggarwal (PW 113) was the Director of the Company till 28.03.1997 and Dr. (Mrs.) Kusum Ansal (PW 115) was the director of the company till 25.03.1996, would show that though these Directors were shown as having attended the meetings on various dates, according to the minutes book Ex. 103/XX-3, they were unaware as to the decisions taken empowering some of them such as Shri V.K. Aggarwal to do certain acts on behalf of the company. PW 109, who according to the minutes of meeting of Board of Directors was conferred with powers was even in doubt as to whether he was actually a director in the company. In any event, PW 109 had no idea even any financial powers were delegated to him and was not aware what were the functions and duties of a Director. He even claimed being unaware whether Uphaar cinema was being run by Ansal Theatres and Clubotels (P) Ltd. Viewed from the context of such evidence even on the date of incident becomes very relevant, as the powers were conferred on these Directors by Board Resolution on
behalf of Ansal?s brothers.

9.68 The above analysis would show that the cinema enterprise was
established, managed and controlled by the first two accused, for their benefit and their family. The appointment of Directors, whose nomination were carefully worded to avoid any reference to Rule 10 (2) of DCR 1953, and the corresponding rule in DCR 1981, is, in this context, not without significance. The intention of both first two accused was to remain in control of the company and the cinema property at all material times. The Court is therefore, satisfied that the findings of the trial court about the control, management and ownership of the Uphaar cinema vesting in reality with the first two accused is well founded. They cannot in the circumstances of this case hide behind the fa?ade or mask of GPT or Ansal Theatres. Thus the decision of the corporate entity be it GPT or Ansal Theatres Pvt. Ltd., that situation continued as on the date of the incident.

9.74 The most crucial decisions of the company which had direct link with the deaths of 59 patrons and grievous injury to 100 others, are beyond any question or doubt, attributable to the first two accused. Thus:

(1) The decision to install a DVB transformer contrary to sanctioned plan and without permission or approval of the licensing authority and the MCD;

(2) Absence of fire safety measures within the transformer room again contrary to regulations;

(3) The structural deviations in the cinema hall;

(4) Use of several portions of the cinema hall for commercial purposes;

(5) Negligent management of parking,

(6) The decisions taken to completely shut the right side gangway in the balcony, that reduced the number of gangways, correspondingly increase the seats and also crucially blocked the right exit.

(7) Failure to ensure proper supervision within the cinema at the time of the show, contrary to the mandate of DCR 1953 and DCR 1981

(8) Failure to ensure functioning fire safety equipment that would have at the time same warned the patrons to leave the cinema hall immediately upon the outbreak of fire or an emergency and also facilitate their escape through proper lighting; were directly attributable to the first two accused as owners and occupiers of this cinema hall.

Their duty of care towards patrons and visitors did not end with any approval granted by one or the other statutory authority either upon a request or in a routine manner. The duty of care both in terms of the Cinematograph Act, Section 12 and in terms of DCR 1953 and DCR 1981 continued, for the duration of each show. That duty did not decrease or vanish merely because some employee was expected to be present, at the relevant points. When a large body of persons such as cinema viewers are closeted in a fully enclosed space having limited exits and who were virtually entrusting their life and well being to owners of the cinema, who effectively managed it, the duty of such owners is a very high one, even in the normal circumstances. In this case the risk factors kept increasing with each departure from the norms. Thus, the installation of the second transformer without authorization, an illegal act itself, increased the risk so far as patrons were concerned. Similarly outsourcing the parking to someone without any operational control or no direction created a further hazard. The

closure of right side gangway, decrease in the number of gangways, increase in the number of seats, all in the balcony and the blockage of the right side exit, “stacked” these risks to unacceptable proportions.

9.75 Being prudent entrepreneurs, the first two accused should have ensured that there was no compromise, with any safety measures that would have imperiled the lives or health of any member of public. Instead the installation of seats blocked the right side exit and the consequent decrease in the number of gangways, were all at their insistence. Similarly the decision to-place the eight seater box and permanently block the right side exit, increased the risk enormously. If one viewed one decision in isolation from other it could arguably be said that there was no danger. Yet each decision had to be seen in its aggregate or cumulative form. Thus, the most important decision to block the right side exit, which rendered the right stairwell inaccessible, was inherently dangerous. It also, in the facts of this case, constituted the foundation for stalking of all subsequent risk factors, which aggravated the danger. All these cumulatively amounted to rash acts which given the outbreak of an emergency — be it a fire incident or something else needing immediate and speedy evacuation of patrons, would have in all probability resulted in casualties. That such an accident did not take place for a long period of time is no excuse for the danger from the cumulative effect of these deviations. Likewise the fact that someone on the fateful day had bolted one or the other door may be another act of negligence on his part. This, however, did not deflect from the inherent dangerousness of the situation that existed within the balcony on that day. The Accused 1 and 2 could not under any circumstance have claimed ignorance of these established facts, or that this should not have reasonably occurred to them also because the two family boxes were placed in the cinema hall for their families exclusive case. The second box was installed in 1978; it blocked the right side exit, of the viewers, These boxes, interestingly, had independent exit entry points — the appellants were at pains to contend that they were not part of the balcony. The omission to maintain fire safety equipments in proper order or its unworkabiIity at that time similarly might have contributed as another act of omissions. But the evidence clearly shows that patrons experienced difficulty in leaving the balcony; it was pitch dark, dense and thick smoke choked them. Many of them were exposed to this for as many as 15 minutes before they could leave the balcony. Some of them who did, came out and deposed. That there is no direct or primary evidence to say that the blockage of the right side hindered movement or that existence of less than prescribed number of gangways and placement of additional seats hindered or obstructed the patrons, again is no consideration. If one visualizes the Situation which existed then, and keeps in mind the evidence of witnesses such PW 49 who deposed that three dead bodies were taken out of the balcony around 5.45 PM, the inherent and unacceptable nature of the danger posed by these deviations stands fully established.

9.76 The accused Gopal Ansal and Sushil Ansal undoubtedly were not present in the scene. The question, however, is not of the presence of actor at the scene of occurrence. In such cases the Court invariably sees the role played by the accused who caused the event, Thus in Bhalchandra ‘s case and Rustam Irani ‘s case (supra), the Supreme Court did not feel any hesitation in convicting the owner who was not present at the site when the fatal accident occurred.

9.77 The lack of effective safety measures and the omission by the first two accused to put in any means of rapid evacuation is further heightened by the fact that an almost identical accident had occurred at the very same place i.e. transformer room in July 1989. A reading of the fire report recorded then which is part of the prosecution charge sheet and documents proved in this case. Ex. PW 88/B establishes that the hot gases escaped and spread up into the cinema hail which had to be evacuated. Then as in the instance of June 1997 the fire brigade had to rush in as many as 40 fire tenders and it took nearly two hours to control the fire. This incident should have served as a warning bell and the Accused Nos. 1 and 2, unfortunately it did not.

9.78 Apart from the decisions of the Supreme Court, mentioned above and discussed in the preceding part of this judgment, the duty of owners and occupiers of lodging houses and establishments have been discussed in two English judgments. Thus in R. Vs. Gurphal Singh,1999 Crim LR 582, one Foster, a lodger who stayed in the accused’s lodging house died on account of carbon monoxide poisoning. The poisoning was caused by room fire. A chimney in the room should have acted as a flew, it did not, since it was blocked. The chimney in the neighbouring room too had been blocked. Resultantly the carbon monoxide, instead of escaping of the chimney remained inside and killed the lodger. It was argued that on behalf of the lodging house owner, the appellant that his acts or omission if one assuming there to be one was not proximate one which led to the death of the lodger. Citing Caparo Industries Vs Dickman. 1990 (2)AC 605, the Court held that the greater the awareness of potential for harm the more likely it is that proximity test would be satisfied. It went on to hold that the proximity test focuses on broader relationship between the parties. After proceeding to hold that what had to be looked at

“is the totality of the situation and when considering whether or not a duty of care existed, it is not appropriate to stay out each part of that situation and then to consider, absent all the other parts there would be a duty of care. Nor is it useful In this Context to concentrate on the phrase “assumption of responsibility”

“…In substance this is a case where those living in the room in which Mr. Foster died in a lodging house managed by Singh family. They were led to believe that the appellant and his father would take care that they were not poisoned by equipments provided by the family. The appellant was possessed of sufficient information to make him aware of danger of death from gas. He may not have had sufficient skill to be able to discover how the danger arose but he was responsible for reasonable space to deal with that danger if need by calling an expert help.”

9.79 The other decision H & N Emanual Ltd. Vs. Greater London Council and another. [1971] 2 All ER 835, was a case where one King and his employees lit a bonfire to get rid of rubbish, when, they were removing two pre-fabricated bungalows. That job had been Contracted by them from the London County Council, owner of the site. Sparks from the fire flew over to the adjacent premises belonging to Emanual and burned them down, The latter sued the Council which had contracted the job since the contractor was not possessed of means to satisfy the claim. After tracing the law from 1401 onwards Lord Denning held that Council could not escape liability and could be sued since it was the occupier. It was held that an occupier or owner in law is liable for escape of fire due to his negligence not only his servant but also his guests or anyone there with his leave or license. The only exception drawn for immunity from negligence is whether the escape is caused by a stranger. The Court in the course of its judgment described an occupier, for the purpose of fire as follows:

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

9.80 In this context of what is reasonably foreseeable, Justice Cardozo in “Palsgraf v. Long Island Railroad, 248 NY 339 stated that:

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

9.81 The duty owed by theater owners to patrons, was spelt out in Rosston Vs. Sullivan, 278 Mass 31(1931), where it was held as follows:

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

9.82 This was affirmed in Helen Upham Vs. Chateau De Ville Theatre Inc 380 Mass 350 (1980). In Mostert V. CBL & Associates, et. Al., 741 P.2d 1090 (Wyo. 1987), the court had the opportunity to determine the nature and scope of the duty of care owned by a theater owner to its patron, against the factual backdrop of a 1985 severe thunderstorm and ensuing.100 year flood which hit the City of Cheyenne. The court held that the theatre owner as business “inviter” owed its patron as “business-invitee” an affirmative duty to exercise ordinary case for the patron’s safety not just inside the theatre but also including an obligation to advise the patron of off-premises danger that might reasonably be foreseeable. The Supreme Court of Canada too in Brown V. B & F Theatres Ltd., (1947) S.C.R. 486, recognized that a theatre owner owed a duty of care to the patrons, and was obliged to take reasonable measures to ensure their safety. Though some of these decisions were rendered in the context of civil action, yet they are useful guides in discerning the nature of duty owed and the extent of reasonable foresight that can be attributable to the concerned actor. Our Supreme Court too has recognized situations where the standard of duty of care cast upon one entrusted with safety of others is higher than in normal circumstances. This was so stated in MS. Grewal Vs. Deep Chand Sood 2001(8) SCC 151 where the duty of care towards pupils, off premises was held to be greater than normal when they were taken on picnic by the school establishment.

9.83 ‘The first two accused who were instrumental in increasing by each decision taken over a period of time, the risk elements which ultimately caused several deaths and grievous injury, owed several duties that was spelt out by specific rules. That they are culpable for the breach of such Rules and Regulations, in another enactment does not in any manner preclude the examination by the Court, the consequence of such action. Section 26 of the General Clauses Act, 1897 provides that where an act or omission constitutes an offence under two or more enactments, offenders can be prosecuted and punished under any one of those but not punished twice for the same offence. Therefore the act which constitutes an offence under two separate laws can be proceeded with together but not separately.

9.84 If the consequence of breach of the Cinematograph Act is spelt out by Section 14. that does not end the matter because the resultant breach of duty may be of such magnitude as to constitute a grave offence dealt with under the general Penal Law. As long as the necessary elements that constitute such general offence are satisfied, the Court will be unconstrained for the prosecution of a lower penalty by the particular law which in this case is Section 14.

9.85 Thus the duty element in this case is spelt out in unambiguous terms by various norms contained in 1st Schedule of DCR 1953 and DCR 1981. The duty as occupier to ensure fire safety was also clearly discernible under Section 12, which enacts an over-riding statutory concern in such matters. The decision to take measures that ultimately hindered escape of patrons exposing them to hot noxious gases which resulted in death was both a rash and negligent. The appellant’s contention of lack of reasonable foresight in such circumstances, cannot be accepted. In this context, although the legislature and rule making authority have used the expression “fire safety” nevertheless the concern is for the safety and security of the patrons. That the fire did not reach the balcony is irrelevant. What is relevant is that all fire safety measures which would have assisted in rapid evacuation and dispersal, utterly and miserably failed, More than half the people in the balcony were affected; 59 died; 3 bodies were recovered from the balcony by the fire officials.

9.86 As far as argument that the cause of deaths were not attributable to the accused since they could not have foreseen fire in the transformer which were made to be maintained and kept in proper repair by DVB’s concern, that does not in any manner lessen or eliminate the role of the appellants. The appellants were instrumental in allowing the DVB to install the transformer; they also knew about its potential for harm when fire broke out in 1989. Then also hot gases entered the cinema hall and patrons were evacuated. Miraculously there was no harm. However, this warning was not heeded and instead the DVB proceeded to install a transformer of higher capacity. As men with reasonable foresight having regard to the propensity of such transformers to create harm, the first two accused could have taken appropriate steps and prevented the installation of the DVB transformer. After all, the cinema hall had proceeded to challenge the license suspended in 1983, due to concerns of fire safety. This fire outbreak should have underlined that concern. No doubt, the authorities do not seem to have approached the Court for variation of the interim order. However, the accused I and 2, as men of foresight, could have approached the Court and resisted the move to install the DVB transformer of a higher capacity. This omission to. take any steps was crucial. Rule 23, DCR 1981 (which corresponded to Rule 21, DCR 1953) mandated that after the outbreak of any fire, before any alteration, intimation about the change had to be given to the licensing authority — about the change, and approval sought. This incident of 1989 afforded an opportunity to inform and seek evaluation of all authorities, about fire safety, specifically in the context of the DVB transformer which had caused the fire. Rule 23(4) mandated evaluation of all electrical equipment, and change. There is none, forthcoming about the DVB transformer. All acts — at least letters written to the fire department suggests that the cinema management were more concerned with the recovery of their monetary damages to their transformer and were content with that. This instance shows that there was a real and live danger in the parking lot which the appellants were aware of; they could also be reasonably expected to know about similar dangers. The appellants also knew that the entire parking lot had been given to a contractor; two transformers were located in the ground floor area where vehicles used to be parked. Both these were in their premises and some parts of it (crucially those areas where the transformers were located in the parking area) were not within their effective control. They had a greater responsibility, therefore, to ensure that such areas were managed effectively and efficiently so as not to pose any danger or threat to the patrons. Their failure on that score is also an act of rashness and negligence.

9.87 In another preceding part of this judgment the Court has held that these accused could not have banked upon the certificates and approvals issued periodically by the statutory authorities as they could not be taken in face value. The inspections, by the licensing department and the fire authorities as also the electrical inspector, completely glossed over the inherent danger which the patrons were exposed to on account of various factors. Therefore, in keeping with the decision in Raj Kapur‘s case (supra) and Barik’s case (supra) those certificates are of no use to the appellants, in their submission that Section 79 intercedes to their benefit. Their acts of blocking the right side balcony exit, blocking the right side gangway and the decrease in the number of gangways in the placing additional seats, all cannot be termed as acts of good faith.

9.88 As far as the argument regarding acts or omissions by the employees of Uphaar such as Unniyal or managers are concerned, attractive through such contention is, they do not detract from the magnitude or significance of the acts and omissions of the accused 1 and 2. The bolting of doors, and absence of a gatekeeper caused greater hindrances. However, in the larger context of causation it did not eliminate the essential cause for which accused I and 2 were squarely responsible, which they have ample time to eliminate.

9.89 It was argued that sustaining the conviction of accused Nos. 1 and 2 would be a travesty of justice, and the Court would be setting impossibly high standards for men with reasonable prudence and foresight, who carry on their enterprise through employees and manage. It had been urged that such high degree of responsibility, based on an extremely low threshold or standard of liability would be inappropriate in criminal law, since invariably courts would be unable to draw the line. It was stressed that the “reasonable foresight” and “proximate and efficient” standards are settled and time tested, and any variation to suit the facts of this case would be doing violence to the law.

9.90 This court has given its most anxious consideration to the submission of the accused. It is often said that decisions are dictated by the facts proved and the attendant circumstances. As noted earlier, the facts here have highlighted complexities which have perhaps not confronted Indian courts, or at least have not been dealt with in reported cases. While the judgments cited by the appellants on proximity and forseeability are undoubtedly binding on this count, yet the reported decisions do not limit the meaning of these concepts. Section 304 A IPC speaks of a “cause”. It conveys the concept of causation. Proximity can be seen as an important factor directing the mind of the Court, and conveying that not all possible causes, but those which are substantial or significant to the event, have to be considered. The preceding section discussing the Law has elaborately explored decisions from India, and other jurisdictions on the issue. As held by the Supreme Court, there is no fixed point on the graph at which the Law requires people to take account of a possibility. The law in India — discernible from the judgments discussed earlier, does factor for such liability of owners or occupiers of buildings, who might in a sense not be “directly” involved with the incident. Nevertheless casual responsibility has been fastened for breach of duty of care, and consequent conviction for criminal negligence, if the act or omission is significant or operational.

9.91 In the complexities of the modem world, where enterprises and large operations are carried out at different levels and simultaneous acts, by different sets of people leading to one or series of connected acts take place, the proximity test as suggested by the appellants would only limit the law, where the text itself does not. This Court, by upholding the findings of the trial court is for these reasons, in no manner diluting the standards for judging criminal negligence liability.

9.92 Causation and proximity as considered in this judgment are not inflexible points capable of only the meanings suggested by the appellants. This Court is also satisfied apart from their being no dilution of standards that entrepreneurial responsibility for purpose of criminal liability has not been elevated to impossible or unreasonable levels. So far as the question of being unable to draw the line is concerned each decision cited in this case points to the inherent elusiveness and imprecision in defining what constitutes criminal negligence. Every term is but an indicator and the courts have to be alive and keen of the different elements that combine to fasten criminal negligence liability in a given case. As long as there is awareness of these elements and the Court is conscious about the standard of proof to be met with by the prosecution i.e. beyond reasonable doubt, there is no question of any confusion about norm or blurring of lines. Each case, through its set of facts and circumstances uniquely presents its own “lines”; this one is no exception. As held in Mayor of Civil Court Vs. Moressa [1893] 1 QB 359,

“the Attorney — General has asked where we are to draw the line. The answer is that it is not necessary to draw it any precise point. It is enough for us to say that the present case is on the right side of any line that could reasonably be drawn.”

9.93 In the circumstances the trial court’s finding about the conviction of Sushil Ansal and Gopal Ansal under Section 304 A read with Section 337, 338 and 36 of IPC and Section 14 of Cinematograph are justified. The conviction, is, accordingly affirmed.