IMPORTANT POINTS
In rashness imputability arises from acting despite the consciousness whereas in negligence imputability arises from neglect of the civil duty of circumspection.
For bringing an action under section 304A the negligence should be ‘gross negligence’.
Doctrine of causa causans applied.
For being occupier it is not necessary to be the owner as well.
Occupier of cinema hall is duty bound to “ensure safety” of those entering a cinema hall for watching the exhibition of a film.
Section 6 of the General Clauses Act, 1897 has no application to repeal of any rule, notification or order.

Headnote:(a) Constitution of India – Article 136 – Criminal Appeal – Scope – Concurrent findings of fact by courts below – Should not be interfered unless it is wholly unsatisfactory or perverse. (Para 46)
       (1976) 4 SCC 158; (2006) 2 SCC 450; (2009) 10 SCC 362; (2010) 9 SCC 399; (2011) 12 SCC 554; (2011) 13 SCC 621 – Relied upon
       (b) Indian Penal Code, 1860 – Section 304A – ‘Rash’ and ‘negligent’ – Rashness means “where the actor foresees possible consequences, but foolishly thinks they will not occur as a result of his act” – Negligence means an omission to do something which a reasonable man would do, or doing something which a prudent and reasonable person would not do – In rashness imputability arises from acting despite the consciousness – In negligence imputability arises from neglect of the civil duty of circumspection.
        (Para 48, 49)
       7 Mad HCR 119 – Cited with approval
       ILR (1881) 3 All 776 – Referred
       (c) Indian Penal Code, 1860 – Section 304A – Negligence – Occupier – May arise out of act of omission or commission – Essence of negligence lies in neglect of duty to care – Existence of duty to care is foremost ingredient of negligence. (Para 66)
       (2005) 6 SCC 1 – Relied upon
       (2001) 1 ILR Punjab & Haryana 368 – Cited with approval
       248 NY 339; (1947) KB 901; 278 Mass 31 (1932); 380 Mass 350 (1980); 741 P.2d 1090 (Wyo. 1987); (1947) S.C.R. 486; (1947) KB 901; (1953) 2 All ER 1185; [1999] CrimLR 582 – Referred
       (d) Indian Penal Code, 1860 – Section 304A – Criminal negligence – For bringing an action under section 304A the negligence should be ‘gross negligence’. (Para 73)
       AIR 1943 PC 72; (2005) 6 SCC 1 – Relied upon
       (1925) 94 L.J.K.B. 791; (1994) 3 All ER 79 – Referred
       (e) Indian Penal Code, 1860 – Section 304A – Causa causans – The rash and negligent act of the accused should also be in close proximity of the death of the victims without the intervention of another person’s negligence. (Para 79)
       AIR 1965 SC 1616; AIR 1968 SC 829; 1969 ACJ 70; AIR 1968 SC 1319: (1970) 3 SCC 904; (1972) 3 SCC 18; (2005) 6 SCC 1; (1972) 3 SCC 525 – Relied upon
       (1902) 4 Bom LR 679 – Cited with approval
       (f) Words and Phrases – Occupier – Of cinema – For being occupier it is not necessary to be the owner as well – What is required is sufficient control, not exclusive control, over the premises – Ownership of the premises is not a condition precedent. (Para 84, 85)
       (1966) 1 All ER 582; (1971) 2 All ER 835 – Relied upon
       (g) Indian Penal Code, 1860 – Section 304A – Ansal brothers occupier of Upahaar Cinema at relevant time – Had duty to care about safety of the viewers – Prosecuted for rash and negligent act of failing in duty as occupiers – No infirmity. (Para 91)
       (2005) 8 SCC 89; (1996) 6 SCC 685 – Distinguished
       (h) Cinematograph Act, 1952 – Section 10 r/w Rule 10(1), 24 and 37, Delhi Cinematograph Rules, 1953 – Occupier of cinema hall is duty bound to “ensure safety” of those entering a cinema hall for watching the exhibition of a film – The duty require the occupier to ensure rapid dispersal from the hall in the event of any fire or other emergency, and for that purpose to provide suitable gangways and keep them clear of any obstruction, to provide proper exits, to keep the exit signs illuminated, to provide emergency lighting, to provide fire fighting systems, alarm systems and to employ and keep trained personnel on duty whenever an exhibition of cinematograph is in progress – This duty to care is not a onetime affair, it is a continuing obligation (Para 98, 101, 102)
       (1917) 2 KB 325; (1934) AC 1 – Referred
       (i) Indian Penal Code, 1860 – Section 304A – Occupier duty bound to ensure safety of cine-goers – Neglect of the same attracts both civil and criminal action which may be simultaneous – Damages already awarded against owner of the cinema hall for compensating the victims – Standard of proof required in civil and criminal action being different, award of damages against the owner of the cinema hall can be no reason to hold the occupier guilty of gross negligence under Section 304A. (Para 110)
       (2011) 14 SCC 481 – Referred
       (j) Indian Penal Code, 1860 – Section 304A – Degree of care required of occupier of cinema hall should be commensurate with the risk created – Such care summarised – Deviations from sanctioned building plans concurrently found by courts below – Deviations though not constituting causa causans show occupiers’ indifference to patrons’ safety and raising their risk level – Courts below also concurrently finding breaches in safety arrangements like absence of PA system etc – These directly contributing to los of human lives – Not happening of similar incident in the past does not mean that it was not reasonably foreseeable – Negligence of the occupiers of the cinema gross so as to be culpable under Section 304A. (Para 113, 114, 116, 118, 119, 120)
       1968 Mah. L.J. 423 (SC); 1968 (3) SCR 766; 1969 ACJ 70; (1972) 3 SCC 18; [1947] AC 156; (1943) AC 448; AIR 1965 SC 1616; (2012) 8 SCC 450 – Relied upon
       ILR XVI All. 472; 1905 PR 22(Cr); 169 English Reports (C.C.) 1517; (1902) 19 TLR 37; ILR (1881) 3 All 776 – Referred
       (k) Indian Penal Code, 1860 – Section 304A – Causa causans – Defence alleging fire in transformer as causa causans – Victims did not die of burn injuries – They died of asphyxia because of lack of rapid exit provision in the balcony in contravention of the Rules – Negligent act of providing only one exit instead of four required for the purpose was the causa causans – Start of fire within or without the premises immaterial. (Para 123, 126)
       (l) Indian Penal Code, 1860 – Section 79 – Protection of section 79 – Not available to a person who has not acted with due care and caution – Essence of Section 79 is a belief entertained in good faith that the act is justified – Instantly, Ansal brothers acted in a rash and negligent manner in breach of their duty towards their patrons – Appellants not entitled to protection of section 79. (Para 132, 133, 134, 136)
       (1980) 2 SCC 175 – Distinguished impliedly
       (m) Indian Penal Code, 1860 – Section 79 – Mistake of fact – Appellants-occupiers of the cinema not been in a position to identify the facts qua which they were under a mistake – Not showing how any such mistake of fact justified their act in law – Not showing reasonableness of such mistake of fact – Not entitled to protection of section 79. (Para 140)
       (n) General Clauses Act, 1897 – Section 6 – Has no application to repeal of any rule, notification or order. (Para 142)
       (1985) Supp SCC 280; (2011) 6 SCC 668 – Distinguished
       (o) Cinematograph Act, 1952 – Sections 12 and 14 r/w Rule 10(1), Delhi Cinematograph Rules, 1953 – Assumption that authorities have done their duty – Not borne out from facts – Similar fire breaking out in 1989 – Defects in the premises pointed out on many occasions – Appellants-occupiers resisting removal of additional seats on withdrawal of notification – Appellants-occupiers not blindly accepting assessment of inspecting authorities – Occupiers not doing anything that could and ought to have been done to avert any tragedy – Conviction of gateman of the balcony cannot absolve appellants-occupiers of their guilt – Cannot escape liability. (Para 154, 155, 157, 158)
       1958 (2) QBD 245; 1873 VIII Q.B. 161; 1948 AC 549; (1941) 2 KB 343(1941) 2 KB 343 – Distinguished
       (p) Code of Criminal procedure, 1973 – Section 464 – An error, omission or irregularity in the charge including any misjoinder of charges does not invalidate any sentence or order passed – Unless a failure of justice has been occasioned thereby. (Para 159)
       AIR 1956 SC 116; AIR 1956 SC 241; AIR 1957 SC 823; AIR 1963 SC 1120; AIR 1982 SC 1249; (2003) 1 SCC 268; (2005) 11 SCC 600 – Relied upon
       (q) Code of Criminal Procedure, 1973 – Section 313 – All incriminating circumstances comprehensively put to appellants-occupiers – Appellants-occupiers not showing any prejudice on account of any deficiency in the statements – No reason to interfere with convictions. (Para 162)
       AIR 1963 SC 612; (1973) 2 SCC 793; (2001) 10 SCC 372; AIR 1967 SC 752 – Relied upon
       (r) Indian Penal Code, 1860 – Section 304A – Gross negligence in grant of fire NOC – Officer concerned had to be satisfied as regards safety of the premises – Cannot take shelter behind printed proforma for inspection – Concurrent finding of guilt by courts below – No reason to interfere. (Para 171, 172)
       (s) Constitution of India – Article 136 – High Court acquitting one of the accused – View taken is a possible view – No reason to interfere. (Para 177)
       (t) Indian Penal Code, 1860 – Section 304 r/w section 36 – Repairs of transformer not satisfactory – The poor repair was no more than causa sine qua non for the deaths – Not constituting offence punishable u/s 304A – Even causal connection between the deaths and shabby repair of the transformer is not directly established – Conviction u/s 304A not sustainable – Conviction u/s 337 and 338 r/w section 36 affirmed. (Para 178, 179)
       (u) Code of Criminal procedure, 1973 – Section 464 – Respondents contending that appellants ought to have been charges against appellants ought to have been framed u/s 304 Part II IPC – Non-framing or wrong framing of charge does not vitiate the proceeding unless there is failure of justice – Failure of justice has to been seen not only from the point of view of victim but also the accused who are entitled to speedy justice under Article 21 of the Constitution – Incident occurred about 16 years ago – Not reasonable to frame a charge for a new offence and remand the matter back for trial again. (Para 201, 206)
       (1996) 6 SCC 129; (2012) 8 SCC 450; (1969) 3 SCC 166 – Relied upon
       (2012) 2 SCC 648; (2011) 6 SCC 216; (2001) 2 SCC 577; 1977 (1) All E.R. 813; 1977 (1) All E.R. 813; (1992) 1 SCC 225 – Referred
       (v) Constitution of India – Article 136 – Scope of interference for enhancement of sentence – Limited – Counsel for CBI not assailing inadequacy of sentence – Appellants have already faced prolonged trial for over 16 years – Appellants not having criminal antecedents – Appellants already deposited the compensation amount awarded to the victims – Enhancement of sentence not warranted. (Para 207, 213, 214, 215)
       (1990) 4 SCC 731; (2004) 7 SCC 257; (2005) 10 SCC 420; AIR 2006 SC 48; 1991 Supp (1) SCC 510; (1995) 3 SCC 351; (2013) 6 SCC 770; (2007) 6 SCC 528 – Relied upon
       Facts of the case:
       This case relates to the infamous Uphaar Cinema Tragedy that led to the death of 59 persons besides injuries to nearly 100 due to the callous indifference and apathy, extraneous influence or considerations and the cynical “Chalta Hai” attitude of the authorities.
       the Trial Court convicted Sushil Ansal (A-1) and Gopal Ansal (A-2) for commission of the offences punishable under Sections 304A, 337 and 338 read with Section 36 of IPC and sentenced each one of them to undergo rigorous imprisonment for a period of two years with a fine of Rs.5,000/- and a default sentence of six months. They were also convicted under Section 14 of the Cinematograph Act, 1952 and sentenced to pay a fine of Rs.1,000/- or undergo two months imprisonment in default. All the sentences were directed to run concurrently. The Trial Court further convicted S.S. Sharma (A-13) and N.D. Tiwari (A-14) who were officials of the Municipal Corporation of Delhi apart from H.S. Panwar (A-15), Divisional Officer, Delhi Fire Service under the above provisions and sentenced them similarly to undergo two years rigorous imprisonment and a fine of Rs.5,000/- besides default sentence of six months imprisonment. In addition, the Trial Court found the charges framed against the Managers of GPT, namely, R.K. Sharma (A-5), N.S. Chopra (A-6) and Assistant Manager Ajit Choudhary (A-7) as well as gatekeeper Manmohan Uniyal (A-8) under Section 304 read with Section 36 IPC proved and sentenced them to undergo rigorous imprisonment for a period of seven years with a fine of Rs.5,000/- and a default sentence of six months.
       B.M. Satija (A-9) and A.K. Gera (A-10) who happened to be DVB Inspectors at the relevant point of time and Bir Singh (A-11) who happened to be DVB Senior Fitter were similarly convicted under Section 304 read with Section 36 IPC and sentenced to undergo seven years rigorous imprisonment besides a fine of Rs.5,000/- and a default sentence of six months imprisonment. Proceedings against R.M. Puri (A-3), Director of GPT and K.L. Malhotra (A-4) Deputy General Manager, S.N. Dandona (A-12) Executive Engineer, PWD and Surender Dutt (A-16) Station Officer, Delhi Fire Service, all of whom died during the pendency of the trial, were held to have abated. Not only that, the Trial Court directed further investigation into the matter under Section 173(8) Cr.P.C. in regard to other persons including Amod Kanth DCP(L) for allowing the cinema to function on temporary permits and for not demanding the detailed inspection reports before issuing such permits.
       The High Court has acquitted five of the appellants before it while upholding the convictions of the rest with or without modification of the nature of offence in some cases and reduction of the sentence in others.
       Finding of the Court:
       There is no reason to interfere with the conviction of appellant-Ansal brothers for offences under Sections 304A, 337, 338 read with Section 36 IPC and Section 14 of the Cinematograph Act, 1952.

Judgement Key Points

Based on the provided legal document, the key points are as follows:

Duty of Care and Occupier Liability:
The occupier of a premises, such as a cinema hall, has a continuous duty to ensure safety and prevent hazards (!) (!) (!) .
Ownership of the premises is not a prerequisite for being an occupier; control over the premises is the relevant factor (!) (!) .
The degree of control necessary to establish occupier status is a matter of fact, based on the extent of control and management exercised over the premises (!) (!) .
Responsibilities Under Statutory and Common Law:
Statutory provisions, such as those under the Cinematograph Act and local building bylaws, explicitly impose obligations on the occupier to maintain safety standards, including fire safety measures, exits, and structural integrity (!) (!) .
The law mandates that the occupier must take all necessary precautions before and during the operation of the premises to ensure safety (!) (!) .
Breach of statutory safety requirements, such as deviations from approved building plans or safety norms, constitutes negligence and can lead to criminal liability (!) (!) .
Negligence and Gross Negligence:
Negligence involves a failure to exercise reasonable care, which can be assessed by considering the facts and circumstances, including statutory duties (!) (!) .
For criminal liability under certain statutes, negligence must be gross or of a high degree, indicating a serious disregard for safety (!) (!) .
The standard of care varies depending on the risk involved; higher risks demand higher standards of precaution (!) (!) .
Causation and Proximate Cause:
The immediate or proximate cause of harm must be directly linked to the negligent act without intervening negligence (!) (!) .
The concept of causa causans emphasizes that the act must be the direct and efficient cause of the injury or death (!) (!) .
In cases involving multiple factors, the breach of duty that significantly contributed to the harm is considered the cause of the incident (!) .
Knowledge and Foreseeability:
The accused's knowledge that their acts could likely result in harm or death is critical for establishing culpability, especially under criminal negligence statutes (!) (!) .
Evidence of prior incidents, warnings, or safety violations can be indicative of the foreseeability of harm (!) .
Responsibility of the Occupier:
The occupier’s control over the premises includes control over structural features, safety measures, and operational procedures (!) (!) .
The presence of deviations from sanctioned plans or safety norms, such as blocked exits, inadequate fire safety measures, or improper repairs, demonstrates a breach of duty (!) (!) .
The occupier's failure to rectify known hazards, such as structural deviations or defective safety equipment, constitutes gross negligence (!) (!) .
Impact of Statutory Compliance and Licenses:
Obtaining licenses and periodic inspections do not absolve the occupier from the ongoing duty to maintain safety standards (!) (!) .
Non-compliance with safety norms, even with valid licenses, is a breach of statutory duties and can lead to criminal liability (!) .
Effect of Repeal or Withdrawal of Regulations:
Repealing or withdrawing safety notifications or permissions does not automatically relieve the occupier from prior obligations or ongoing safety duties (!) (!) .
The law recognizes that the obligation to ensure safety persists despite changes in regulations unless explicitly stated otherwise (!) .
Good Faith and Mistake of Fact:
The defense of acting in good faith based on mistaken belief requires that the accused acted with due care and that the mistake was reasonable (!) (!) .
Lack of evidence of good faith or due care undermines the applicability of protections under statutory provisions like Section 79 of the IPC (!) .
Sentencing and Quantum of Punishment:
The court considers the gravity of the offence, the degree of negligence, and the circumstances, including delay in trial, prior conduct, and age of the accused, when determining the sentence (!) (!) .
The courts have the authority to enhance or reduce sentences based on proportionality, gravity of the offence, and overall circumstances, including long delays or mitigation factors (!) (!) .
In cases of gross negligence leading to loss of life, the court may impose substantial fines or enhanced sentences, but must balance the severity with considerations of justice and public policy (!) .
Directions and Preventive Measures:
Authorities should enforce safety standards rigorously, including regular inspections, emergency preparedness, and public awareness campaigns (!) (!) .
Specific recommendations include mandatory evacuation plans, fire safety ratings, and regular mock drills to prevent future tragedies (!) (!) .
The law emphasizes that violations and negligence in safety measures are punishable, and authorities must actively monitor compliance (!) .
Final Orders:
The appeals by the convicted individuals are generally dismissed, affirming their liability and sentences, with some reductions based on age or other mitigating factors (!) (!) .
Substantial fines are imposed as alternative or additional punishment, with directions for the establishment of memorial trauma centers (!) .
The legal responsibility extends to all involved parties, including management, officials, and regulatory authorities, emphasizing accountability for safety lapses (!) .

These points collectively underscore the importance of continuous vigilance, strict adherence to safety norms, and accountability in the management of public entertainment venues to prevent tragedies and ensure public safety.

JUDGMENT

T.S. THAKUR, J. –

Enforcement of laws is as important as their enactment, especially where such laws deal with safety and security of citizens and create continuing obligations that call for constant vigil by those entrusted with their administration. Callous indifference and apathy, extraneous influence or considerations and the cynical “Chalta Hai” attitude more often than not costs the society dearly in man-made tragedies whether in the form of fire incidents, collapse of buildings and bridges, poisonous gas leaks or the like. Short-lived media attention followed by investigations that at times leave the end result flawed and a long winding criminal trial in which the witnesses predecease their depositions or switch sides under pressure or for gain and where even the victims or their families lose interest brings the sad saga to an uncertain end. A somewhat similar story is presented in these appeals by special leave arising out of a common judgment and order dated 19th December, 2008 passed by a Single Judge of High Court of Delhi whereby a batch of criminal appeals filed by those convicted by the trial Court for commission of different offences and the sentences awarded to them were disposed of alongwith criminal revision petition no.17 of 2008 filed by the Association of Victims of Uphaar Tragedy (hereinafter, “AVUT”) that led to the death of 59 persons besides injuries to nearly 100 others.

2. The High Court has, on a reappraisal of the evidence adduced at the trial, acquitted five of the appellants before it while upholding the convictions of the rest with or without modification of the nature of offence in some cases and reduction of the sentence in others. We shall in the course of this judgment refer in detail to the view taken by the Trial Court and the extent and nature of modification made to that by the High Court in the impugned judgment.

3. Suffice it to say that the fire incident that claimed valuable human lives took place in the heart of the capital city of Delhi in a cinema building situate in its posh Green Park Extension area on 13th June, 1997. The factual backdrop in which the unfortunate victims lost their lives or suffered injuries has been set out by the Trial Court in its judgment and reiterated by the High Court in the order passed by it without any significant changes in the narrative. In the Trial Court, as in the High Court and even before us there was no serious dispute as to the cause of the fire leading to the loss of human lives. We, therefore, would remain content with the broad narration of the facts as are available from the order passed by the Trial Court and that passed by the High Court, which are as under:

The Incident:

4. Uphaar Cinema building, situate on a plot of 2480 square yards at Green Park Extension Shopping Centre, New Delhi, comprised a cinema auditorium with a sanctioned capacity of 750 seats besides a balcony with a sanctioned capacity of 250 seats. The cinema auditorium comprised the first floor of the cinema complex while the balcony was constructed on the second floor. The ground floor of the building comprised a parking lot besides three separate rooms on the western side, one of which was used for placing a 500 KVA electric transformer that supplied electric energy to the cinema theatre while the other was used for housing a 1000 KVA transformer that was installed and maintained by the Delhi Vidyut Board (hereinafter referred to as “DVB”). It is common ground that the second transformer even though located within the cinema premises, did not supply electricity to the cinema but rather to some of the tenants occupying parts of the commercial complex that formed a part of the building and some other consumers from the locality.

5. The prosecution case is that on 13th June, 1997 at about 6.55 a.m. the bigger of the two transformers installed and maintained by DVB on the ground floor of the Uphaar Cinema building caught fire. The fire was brought under control by 7.2

Click Here to Read the rest of this document

2014 Supreme(SC) 185

SUPREME COURT OF INDIAT.S. THAKUR, GYAN SUDHA MISRA, JJ.Sushil Ansal – AppellantVersusState Through CBI – RespondentCRIMINAL APPEAL NO.597 OF 2010 (With Crl. Appeals No.598/2010, 599/2010, 600-602/2010, 604/2010, 605-616/2010 and 617-627/2010)Decided On : 05-03-2014

Cases Referred (46)

SUPREME COURT OF INDIA
T.S. THAKUR, GYAN SUDHA MISRA, JJ.
Sushil Ansal – Appellant
Versus
State Through CBI – Respondent
CRIMINAL APPEAL NO.597 OF 2010 (With Crl. Appeals No.598/2010, 599/2010, 600-602/2010, 604/2010, 605-
616/2010 and 617-627/2010)
Decided On : 05-03-2014