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Uphaar: A Case Of Justice Delayed & Denied?

Published on Sat, Nov 14,2015 | 13:00, Updated at Mon, Nov 16 at 18:19Source : CNBC-TV18 |   Watch Video :

18 years ago, the Uphaar cinema fire killed 59 people. It was the worst such tragedy of its time. The owners of the cinema, the Ansal brothers were found guilty of negligence. But, their only punishment is a 60 crore rupee fine. Why did the supreme court spare them jail? Aayush Ailawadi finds out…
 
On the morning of 13th June, 1997 a transformer in Delhi’s Uphaar cinema malfunctioned. It was repaired by employees of the Delhi Vidyut Board. But later that day, during a matinee show of the film ‘Border’, a power outage caused the same transformer to malfunction again. This led to a massive fire in the parking lot and the smoke from this fire engulfed the cinema hall. One of the exits was blocked and no equipment or safeguards were in place to deal with such an emergency. As the audience tried to escape, many of them succumbed to the toxic gases, others engulfed by the fire. 50 people died and 100 were injured. 
 
It took 17 years for the case to make its way through the justice system and reach the Supreme Court. In March last year, the 2 judges on the Supreme court bench delivered a split verdict on the quantum of punishment. J. Thakur upheld the 1 year sentence imposed by Delhi High Court but J Misra believed that the Ansals should be imprisoned for two years. Though she added that if they paid a fine of a 100 crore rupees, then the jail term could be reduced.
 
The matter was subsequently referred to a 3 judge bench which imposed a fine of 60 crore rupees and a 2 year sentence. But, the judges ordered the second year to be offset by the fine. That reduced the sentence to a one period and that too was set off against the time the Ansals had spent in jail. So, effectively the punishment amounted only to a penalty.

The 3 judge bench justified this decision by stating:
-that it was only concerned with sentencing in a criminal case and not with awarding damages in a suit;
-that after considering the gravity of the offence manner of commission and mitigating factors, the sentence should not be excessively harsh or ridiculously low
-that since Sushil Ansal is 75 years old and Gopal Ansal is 67 years and hence, ‘fairly aged’, they should be given a chance to avoid rigorous imprisonment by paying a 60 crore rupee fine instead...
 
Former Additional Solicitor General Of India and well known senior counsel, Siddharth Luthra says that in such cases of corporate negligence, the accused must serve at least 2 years in jail, if not more...
 
Siddharth Luthra
Senior Advocate, Supreme Court
Former ASG of India

“I’d like to deal with offence under Section 304 A, which is really the offence in question. Now, I need to make it very clear that at various points in time the SC has given varying sentences. But, you must understand that when death is caused there are 3 kinds of offences. There is the highest which is murder, then culpable homicide and then causing death by a rash or negligent act which is punishable with an imprisonment of 2 years sentence. Now this is the lowest of the category where death is caused in terms of sentencing policy. Now, way back in the late 1800s, the court had determined the principles behind how these 3 have to be categorized, but keeping those principles in mind, the SC in 1987 in Ratan Singh’s case took a view that the sentence is limited. Therefore a reduction below the 2 year minimum is not really warranted even in a case of death by driving rashly or negligently. Now, this is a case of industrial or commercial negligence!”
 
With 59 people dead and over 100 injured, how did the Ansals escape jail time? The answer to that question lies in the charge applied and the punishment that accompanies it.
 
In the trial court, the families of the victims had pleaded that the Ansals be charged with Section 304, that is culpable homicide not amounting to murder. Conviction under 304 comes with a jail term upto 10 years or life imprisonment. But, the sessions court dismissed this plea and instead, the Ansals were charged with section 304 A of the IPC which relates to causing death by a negligent act and prescribes a sentence of up to two years or a fine or both.
 
Senior Advocate at the Supreme Court and noted criminal lawyer, Aman Lekhi says that the Ansals owed a non- delegable duty of care to their customers and that the brothers should have been charged with culpable homicide instead…
 
Aman Lekhi
Senior Advocate, Supreme Court
 
“In this particular case, if the company is liable and if the company had been prosecuted at that point of time, the company would surely have been prosecuted under 304 and not 304 A! If the company would have been prosecuted under 304, the guiding mind of the company i.e. applying the alter ego principle or the mind and the hand principle, even if you exclude the agency principle, then the managing director and the director responsible would have been prosecuted under 304 and not 304 A. and if the tenor of the judgment is seen, whether it is balcony or seats or parapet wall is concerned, if all these issues are taken in totality you cannot possibly say that in so far as those incharge could not possibly have anticipated that a crisis like this could’ve happened to have actually caused death. Now, if that is so then it’s not a case of negligence as it is is made out to be, it is clearly a case of knowledge and I personally think punishment under 304 would have definitely been more appropriate.”
 
Corporate negligence is a situation where a corporation violates a law or regulation resulting in damage to a third party. In such cases, the concept of vicarious liability also applies which holds the employees liable along with the company and its directors.
 
In 1984 in the Bhopal Gas Leak case, although the chairman of Union Carbide Corporation, Warren Anderson was charged with culpable homicide, he escaped jail time as he fled to the USA. The others who were held guilty in the case were charged for the milder offence of death by negligence with 2 years in jail along with a measly fine and were out on bail as soon as the verdict was delivered.
 
In 2011, in yet another case of corporate negligence at AMRI Hospital in Kolkata, a fire broke out due to improper disposal of medical waste. 95 people lost their lives. The owners of the hospital, Mani Chhetri and SK Todi are 95 and 72 and although they have been charged with culpable homicide, they have been out on bail.
 
In both cases – culpable homicide was applied. And yet at no stage in the Uphaar case did the Ansals get charged with culpable homicide.

Majeed Memon, one of India’s top criminal lawyers also argues that the Ansals should have been tried for culpable homicide under S. 304.
 
Majeed Memon
Senior Advocate, Supreme Court

“There are two genuine grievances, one is that 304 A being a bailable offence, the person even if he has crushed 10 people, and the offence applied is only a bailable 304 A, then he gets out on bail at the police station in a matter of hours, which is definitely very anguishing and number two, as you rightly said that ultimate punishment on establishing guilt is not proportionate with the offence or consequence that has been resulted in his rash and negligent act. So therefore, there has been debate raging for the past few years that if the consequence of such a rash and negligent act is disastrous then let the offence not be that of rash and negligent act but let it be a case of homicide under s 304, unintentional case of homicide and that is punishable for longer term- 10 years or so and is also non bailable.”
 
But, the Sessions court only charged the Ansals with Section 304 or death by negligence, though it noted that the maximum sentence of 2 years in jail was still 'grossly inadequate' in such a case. On appeal, the High Court agreed that Section 304 should not be applied to the Ansals, but reduced the sentence to a year of rigorous imprisonment. The Supreme Court also agreed that this was a case of death by negligence and not culpable homicide.

Aman Lekhi
Senior Advocate, Supreme Court
 
“The sessions court had declined it. Unfortunately, an appeal was not filed in the SC. However what I recollect is that the sessions court said that this issue would be decided at the closure of the trial if the court thinks it appropriate to frame a charge under 304. Now, the court admittedly did not convict them under 304. The sessions court did not do so, after it had opined that the right stage for deciding that would have been the conclusion of the trial, then this particular issue could have been considered by the SC, which was unfortunately not considered.”
 
So, neither the High Court, nor the Supreme Court altered the charge making the application of 304 A or death by negligence final. Once the charge was final, the punishment was limited by law to a maximum 2 year sentence and or a fine. the High Court ordered 1 year in jail. The SC increased that to 2 years. But even then, the Ansals escaped.
 
Because, the Supreme Court offset one year of the sentence against the 60 crore rupee penalty. The judgment indicates that J Mishra referred to the Bhopal Gas Tragedy Case and said in that case, a Madhya Pradesh court had offset a prison sentence by a certain amount of compensation. But, lawyers disagree with the judge’s reference and her conclusion...

Siddharth Luthra
Senior Advocate, Supreme Court
Former ASG of India

“Let me first clarify, I am appearing for some of the accused in the Bhopal gas case. Secondly, the individual accused in the Bhopal gas case have been convicted and their appeals are pending and the government has moved for enhancement of the nature of the offence so that those applications are pending in the trial court as far as I recall. That was not a case where compensation was used to offset the sentence. There was an initial situation where there was a dropping of prosecutions by payment of compensation but that was finally re-looked at by the SC and set aside and the trials did continue, ended up in a conviction and now as I said the appeals are pending before the sessions court. So I don’t think that’s an example which can be drawn here and perhaps that reference was not entirely accurate.”
 
Aman Lekhi
Senior Advocate, Supreme Court
 
“In the Uphaar case, it is not like victims were any urgent need of money as such, the question here was to actually set the example for situations like these not happening and hold those who were responsible for this contingency to book and ensure that similar contingencies do not happen. And if bhopal is in any way relevant, it’s because the strategies are supposed to be in place for crisis management, to ensure that the govt authorities concerned do their job, to ensure that corporate houses have a mechanism in place to deal with such things. What the SC should have done was to pointed out that- use Bhopal as a base and remember that after 30 years after Bhopal, we are still in the same situation as in 80s. this itself requires a far more stringent way of dealing with the situation that arises today than going back to Bhopal once again!”
 
Having reduced the sentence to one year, the Supreme Court bench then set-off the remaining year of imprisonment against jail time already served by the Ansals. The judges did so on grounds of age – Sushil Ansal is 75 and his brother 67. But, the same Supreme Court had earlier this year upheld the 10 year jail sentence against Haryana Chief Minister OP Chautala. Chautala is 80 years old.

Aman Lekhi
Senior Advocate, Supreme Court

“You see as far as age is concerned, consistency is absolutely basic to judicial pronouncements. Because the principle of stare decisis is premised on predictability. As I said, you cannot equate 75 years with 67!! Where do you stop? What will you equate 67 with then? So far as parity is concerned that is not there. Secondly, so far as 67 is concerned the age is not something which is that high for the court to be indulgent but presuming age is a factor and I fail to understand in Chautala’s case, a person has been convicted to 10 years of imprisonment and the SC bench rued the fact that systems are not in place. It is unfortunate scams like these happen. Now systems were defi not in place even in the Ansals case. Whether it’s the DVB or MCD or the police, they may be let off the hook but if systems are not in place, then even in Teachers scam you disregard age to impose the maximum punishment, why should you be hesitant in applying the same principle to Ansals?”

The victims of the Uphaar tragedy say– justice has not only been delayed but also denied. Lawyers too are concerned about the precedent this case sets. Can a fine offset a jail term in so heinous a tragedy?

Siddharth Luthra
Senior Advocate, Supreme Court
Former ASG of India

“As a precedent, my concern with this decision is: 1) Of course it makes it clear that there is a maximum sentence given, so in future cases this is going to be cited as a precedent that there should be a maximum sentence of 2 years and that is going to lead to aberrations in a certain class of cases where there may be contributory negligence or otherwise or where cases call for lesser sentencing. On the other hand, the setting off of the sentence by payment of the fine, is to my mind an exercise which may need to be re-looked at because that will lead to it own sets of consequences and perhaps consequences which will create a distinction between a poor accused and a rich accused.”

Majeed Memon
Senior Advocate, Supreme Court

“As a fallout of this judgment a healthy debate might ensue which can justifiably raise an important question of law, namely that with highest respect to SC, cannot it be said that the liberty of these gentlemen, the 2 brothers was at a heavy price? So you had enough money and have bought liberty, if you do not have money, you remain in custody?”
 
Last week, the CBI approached Supreme Court seeking a review of this judgment. One of the key concerns that experts have is that, over the years, there hasn't been any consistency in the application of the two sections of the IPC- S. 304 or culpable homicide and S. 304 A or death by negligence and hence, we have seen varying sentences for the culprits involved in man made tragedies. Be it the Bhopal Gas Leak case or the AMRI fire or even in this case, the Supreme Court has failed to send out a strong deterrent message to companies involved in cases of corporate negligence.
 
In Mumbai, Aayush Ailawadi
 
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