CASE ANALYSIS OF

SUSHIL ANSAL V. STATE THROUGH CBI

Crl. Appeal No. 598/2010

By:-

CHINMAYA GUPTA

3rdYr., BA.LLB.

SYMBIOSIS LAW SCHOOL, NOIDA

www.probono-india.in

November 25, 2020

INTRODUCTION

This is a famous case of Uphaar Cinema tragedy, which was one of the worst fire tragedies
shaking the lives of hundreds. This case involved contributions from some great minds like
Mr. Ram Jethmlani, Mr. Harish Salve and Mr. KTS Tulsi as the counsels in the case. The
tragedy turned cinema hall into a dark gas chamber.

BRIEF FACTS OF THE CASE

The fire incident took place on 13th June 1997. The root cause of fire was 1000 KVA
transformer installed and maintained by the Delhi Vidyut Board, which was in the premises
of Uphaar Cinema.

 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 Uphaar Cinema building caught fire. The
fire was brought under control by 7.25 a.m. and it was repaired by two employees of
the DVB. The said transformer was recharged for resumption of electric supply by
11.30 a.m. on the same day.
 On the same day around 3:00PM, matinee show of film ‘Border’ started. Between
3:55 and 4:55 p.m., there was a general power shut down; however, the Cinema show
continued. Immediately, on resumption of electricity at 4:55 pm, there was intense
and heavy sparking in the DVB transformer, which ultimately resulted in rupture of
the Transformer fin. Through this slit, the transformer oil spilled out, caught fire and
consequently set ablaze several vehicles parked nearby in the stilt floor.
 The smoke entered the hall from the staircases, air conditioning ducts as well as the
area beneath the screen and the audience sitting in the ground floor of the auditorium
escaped immediately. The audience sitting in the balcony found it hard to escape as
there were no lights due to lack of power supply nor were there any emergency lights.
The closure of one exit and other hindrances caused panic and delayed escape of
spectators occupying balcony. There were two exits, one was open while the second
was closed because of placing of extra seats. The additional seats were placed with
the permission from the competent authorities.
 The fire was soon declared a major one and rescue operations continued till about
7:30pm. The entire mishap claimed lives of 59 persons besides injuries to nearly 100
others.
  The family member of deceased and the injured came together and formed an
association called the Association of Victims of Uphaar Tragedy and filed a criminal
case against Sushil Ansal, Gopal Ansal, H.S Panwar and others.

The above-mentioned were charged u/s 304, 337, 338 r/w 36 IPC and u/s 14 of
Cinematograph Act for their negligent acts of omission and commission of allowing
installation of DVB transformer, various structural and fire safety deviations in violation of
various Rules and not facilitating the escape of patrons causing death of 59 persons and
injuries to 100 others.1

ISSUES

There were a number of questions before the hon’ble court, however only few of them have
been mentioned below:

1. Whether the accused persons committed any rash or negligent act within the meaning
of section 304A IPC?
2. Whether the sentence awarded by High Court deserves to be enhanced?
3. Whether holding the accused guilty of offense of culpable homicide not amounting to
murder u/s 304 part II justified for retrial of the accused for the said offence?

ARGUMENTS FROM APPELLANT’S SIDE

1. Accused was not the occupier of the Uphaar Cinema nor did he owe any duty of care
towards those who came to watch the movie on the fateful day so as to give rise to any
civil or criminal liability against his client for the alleged breach of any such duty.
Cinema was owned by GPTA Pvt. Ltd. and later by Ansal Theaters & Clubotels Pvt.
Ltd. who alone could be said to be the occupiers of the Cinema.
2. The causa causans for the loss of human lives thus was the transformer that caught fire
because of the neglect of the DVB officials who did not even have a crimping machine
to repair the transformer properly. No death took place inside the balcony proving that
the patrons sitting in the balcony had exited from that area, but died on account of the
poisonous effect of the gas.
3. The appellant was protected under Section 79 of the IPC for they in good faith
believed themselves to be justified in law in exhibiting films with the seating and other

1
Suhsil Ansal v. State thr CBI, decided on Sept 22, 2015 available at
https://main.sci.gov.in/jonew/judis/42966.pdf
 arrangements sanctioned under the said licence. They were entitled to assume that
licensing authority had done its duty and satisfied itself about the premises being
adequately safe for those visiting the same.
4. Further, the withdrawal of notification dated 30th September, 1976 (permitting adding
100 seats) did not create anobligation for the occupiers of the cinema to remove the
additional seats that had been permitted under the said notification.
5. The counsel argued placed reliance on Keshub Mahindra 2 case and argued that a case
where a person in a drunken state of mind drives a vehicle recklessly is completely
distinguishable from the case at hand and that the fact situations are not comparable
for identifying the rash/negligent act.

ARUMENTS FROM RESPONDENT’S SIDE

1. It wasargued that the acts of omission and commission of Appellants by which the
egress of the patrons was obstructed warranted a conviction not merely for the offence
punishable under Section 304A IPC but also for the offence punishable under Section
304 Part II since the said acts were committed with the knowledge that death was
likely to result thereby.
2. Further, the act of installing an eight-seater box that entirely blocked the right-side
exit in the balcony was itself sufficient for the Court to order a retrial of the Ansal
brothers, since they knew by such an act they were likely to cause death of the patrons
in the event of fire.
3. Wrt, the causa causans was not the fire in the transformer but the breaches committed
by the occupiers of the cinema which prevented or rather delayed rapid dispersal of
the patrons thereby fatally affecting them because of carbon monoxide laden gas in
the smoke filling the atmosphere.
4. The immunity u/s 79 IPC is founded on good faith which was totally absent in the
present case where the occupiers of the cinema and even those who were instrumental
in the grant breached the duty to care providedin common law and statutory provision.
Also failed to discharge the legal obligations
5. In respect of owing a duty to care, a person in charge of a public entertainment centre
catering the general public, owes a duty to maintain a safe environment. It would be
indeed very far-fetched to contend that a person who maintains a cinema hall and

2
Keshub Mahindra v. State of M.P. (1996) 6 SCC 129
 charges the public a fee for the facility, does not owe a duty of care to ensure that the
public can enjoy the facility in a safe environment.

LEGAL ASPECTS

The entire case concentrates on act and omission committed by the accused while fulfilling
their duty as the owner of the cinema. Ownership and control vested with the Ansal brothers
at all material times and they were involved in the day to day activities of the cinema.

1. Negligence u/s 304A of IPC

With regard to negligence, the court put forward a gross and culpable neglect to exercise
reasonable and proper care to guard against injury. Accused acted without consciousness and
ability of a prudent man. It is different from intention and acts as breach of duty. 3 The court
took into account meaning of negligence from various sources and coupled it with the present
case. The existence of a duty to care is the first and most fundamental of ingredients in any
civil or criminal action brought on the basis of negligence, breach of such duty and
consequences flowing from the same being the other two. 4 In case of a theatre owner: “The
general duty to use ordinary care and diligence to put and keep this theatre in a reasonably
safe condition, having regard to the construction of the place, character of the entertainment
given and the customary conduct of persons attending.”5

2. Degree and nature of care expected of an occupier

The degree and nature of care expected depends upon the factual situation and the kind of
person to whom such duty is owed. Is the person a visitor, invitee, licensee or trespasser? In
our country, occupier owes a duty to care towards different categories of visitors. It is
occupier’s duty to keep the premises safe. To fully discharge his duty, he must fulfil the
duties cast under statutes or rules. In the present scenario, the occupier of the premises owes a
statutory duty under section 10, 12, 16 of the Cinematograph Act, rules of Delhi
Cinematograph Rules to ‘ensure safety’. It leave no room for doubt that apart from common
law duty to care, the statutory provisions too cast the same.

The nature and degree of care is to ensure safety against all foreseeable danger and harm. In
the case of cinema occupier the nature of an occupier’s duty to care may, inter alia, require
him to ensure rapid dispersal from the hall in the event of any fire or other emergency, and
3
Charlesworth and Percy on Negligence
4
Sushil Ansal v. State through CBI decided on March 5, 2014 https://main.sci.gov.in/jonew/judis/41301.pdf
5
278 Mass 31 (1932)
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.

LEGAL PRECEDENTS

The apex court cited a number of precedents during the pronouncement of judgement. It will
be interesting to consider a few of them issue-wise.

While dealing with the meaning of rash /negligent within the purview of s.304A, appellant’s
placed reliance, upon the decision Rosston v. Sullivan6 which states the duty ofa theatre
owner as“The general duty to use ordinary care and diligence to put and keep this theatre in a
reasonably safe condition, having regard to the construction of the place, character of the
entertainment given and the customary conduct of persons attending.”

With regard to the enhancement of sentence and the amount of damages, the court cited
numerous precedents, however, relied on the case of Ankush Shivaji Gaikwad v. State of
Maharashtra7 where the court noted a global shift from retributive justice towards
victimology. The amount awarded by High Court has been deposited by Ansal Brothers.
Enhancing the sentence needs to be guided by sound logic. There is no legislative compulsion
for doing so. Enhancing the sentence is a major step staking the years of life of any
individual. The sentence depends upon the gravity of offence and enhancing the same when
the case itself took 16 years for disposal is high disproportionate.

With regard to the ownership of Ansal brothers, it depends on the degree of control over the
place and the day-to-day activities of the management. T.S Thakur J, considered the decision
in H & N Emanuel Ltd. v. Greater London Council & Anr. 8 which observed that “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”

After deciding the position of occupier, the liability of occupier was decided keeping the
common law decision in Mclenan v. Segar9 in mind. It states that the occupier is in implied

6
278 Mass 31 (1932)
7
(2013) 6 SCC 770
8
(1971) 2 All ER 835
9
(1917) 2 KB 325
contract with the party for providing safe premises and it is his duty to provide reasonable
care from all the defects which could be discovered.

The above case holds that a duty to care exists under common law on the occupier of the
premises. This is additionally supported by statutory obligation, a breach of which would be
enough proof of negligence. The very object of the legislation was to put particular
precaution beyond controversy. This was held in Lochgelly Iron & Coal Co Ltd. v.
Mullan10

CRITICAL OVERVIEW OF THE JUDGEMENT

The case made before the two learned judges of SC holds an important place in the legal
history. The case initially looked like the tragic event of Bhopal Gag Tragedy. The case talks
about the tragic fire incident reaching the toll to 59 deceased and more than 100 injured. The
judgement given by T.S Thakur J. took into account practically everything thereby upholding
the conviction of Ansal Brothers and undergoing the remainder of their sentences. Similarly,
Justice G.S Misra upheld the conviction under IPC provisions, but with regard to the question
of sentence, J. Misra the remaining substituted with a fine of Rs. 100 crore to be paid equally
by Ansal brothers which shall be spent on the construction of a Trauma Centre in the memory
of Uphaar Victims ‘Victims of Uphaar Memorial Trauma Centre’

The author agrees with the view and findings of the court, the death of 59 innocent is directly
related to the negligent act and omission of accused. The negligence clearly amounts to
criminal negligence. The appellants argued that the direct cause of death was the fire and the
poor repair of the transformer however, it is not true, not fire but the inability to escape the
balcony caused the death. So, the failure to exit was the immediate cause of death and the
same constituted causa causans. The accused breached their common law and statutory duty
to care, which was sufficient to establish culpable criminal rashness and it further establishes
that they acted with consciousness and the requisite knowledge as to the consequence of their
acts of omissions and commissions.

The occupiers not only committed deviations and compromised with the safety by adding
extra seats but also breached their duty by neglecting the maintenance of hall. There was no
public announcement system, no fire alarm, no managing staff, no emergency lights etc. “In
such a scenario it can easily be said that not only were they negligent but the negligence was
of such a high degree that no reasonable man would have undertaken such a course specially
10
(1934) AC 1
the ones who were dealing in the business of running a cinema theatre where the lives of
public at large were involved day in and day out as visitors to the cinema show.”11

The above negligent acts could not be garbed under the defence of penal immunity. The
accused failed to fulfil the duty of occupier of public place grossly. Such failure cannot be
held immune simply because a license had been granted.

CONCLUSION & SUGGESTIONS

The court rightly convicted the accused u/s 304A, 337, 338 r/w 36 of IPC and section 14 of
Cinematograph Act and in 2015 imposed a fine for Rs. 30 crores each which can be used
either for the purpose of setting up a Trauma Centre in NCT of Delhi or for upgrading
Trauma Centres of Hospitals managed in NCT. This said and done cannot compensate the
vacuum created in the victim’s family. The demand of justice is fulfilled by giving adequate
sentence for retribution within the permissible limits. The horrific scene though could not be
said to have been caused by fire but the gross negligence served by Ansal Brothers merely for
more units of money catalysed the entire incident and resulted in the tragic death of 59
people. The court is right in taking the above said decision because this will not only deter
other people but also made the accused pay for what they did. Believe it or not their
reputation also suffered a major setback.

To prevent such mishaps, the administration must be vigil all the time and every effort would
go to vain unless person entrusted with such duty indulge in taking reasonable care with
foreseeability of a prudent man. In a nutshell, such cases can only be prevented if the humans
work carefully, keeping social interest over personal interest.

REFERENCES

 Rosston v. Sullivan, 278 Mass 31 (1932)

 Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770
 Keshub Mahindra v. State of MP (1966) 6 SCC 129
 H & N Emanuel Ltd. v. Greater London Council & Anr (1971) 2 All ER 835
 Mclenan v. Segar (1917) 2 KB 325
 Lochgelly Iron & Coal Co Ltd. v. Mullan (1934) AC 1

BRIEF ABOUT THE AUTHOR

11
G.S. Misra J. in Sushil Ansal v. State thr CBI, 2014
Chinmaya Gupta is a 3rd year student pursuing BBA.LLB from Symbiosis Law School,
NOIDA. She has a keen interest in Criminal Law and Human Rights. She has interned under
various law firms and also worked as Content Writer with Lexlife India.