Tragic errors

The trial court convicts 12 accused in the Uphaar theatre fire case, but it is still not the last word on all those who caused the disaster.

in New Delhi

THE Indian Penal Code (IPC) makes a subtle distinction between an offenders intention to cause death, and knowledge that an act is likely to cause death. In other words, an offender may not have the intention to cause death, but may have the knowledge that a particular action or inaction is likely to cause death and is liable to be punished. Liability for most man-made disasters, therefore, can be fixed with the help of the IPC if it is established that those accused of causing death by negligence had the knowledge that their action was likely to cause death.

If such knowledge cannot be established, the accused can only be held guilty of causing death by rash and negligent act, for which only a lesser punishment can be imposed. Establishing the knowledge of the accused about the disaster-causing potential of their action is, therefore, important to deter those in responsible positions from neglecting their duty to exercise reasonable care.

When Additional Sessions Judge, Delhi, Mamta Sehgal, convicted 12 accused in the Uphaar theatre fire case (CBI vs Sushil Ansal) on November 20, she did so by invoking Section 304-II of IPC (dealing with culpable homicide not amounting to murder) against seven of them, for knowingly letting the disaster happen. However, she invoked Section 304A (causing death by rash and negligent act) against five of them, even though there was substantial evidence pointing to their knowledge that their actions were likely to result in such a tragedy. The maximum punishment under Section 304-II is 10 years imprisonment whereas under Section 304A, it is just two years imprisonment. Conviction of the four remaining accused abated because they died during the trial.

The judgment, therefore, only partially satisfied the Association of Victims of Uphaar Tragedy (AVUT), which was formed within 15 days of the tragedy and which has been in the forefront of the long-drawn legal battle in the trial court.

The tragedy took place on the evening of June 13, 1997, at the Uphaar cinema in the capital, where the Hindi film Border was being shown. When the transformer at the theatre caught fire, 59 persons, mostly children, died while 100 were injured. The cause of the death of persons sitting in the balcony of the cinema hall was asphyxia caused by inhalation of smoke. The Judge found that it was combustible materials that caused the smoke, and smoke came from the ground floor to the balcony through the staircase and the horizontal openings on account of the raising of the wall behind the transformer and the unauthorised structure in the stilt floor, which obstructed the passage of smoke into the atmosphere at the lower level.

The Judge added that the presence of combustible materials in the cinema hall building was in violation of the law and it was borne out of the inspection reports that its burning emitted the smoke. The Judge found that the position/installation of the transformer was not in accordance with the Bureau of Indian Standards/sanction plan. High-tension and low-tension wires were kept in the same room while installing two transformers side by side in violation of electricity rules. No provision was made for separating the transformers; no fire-resistant wall was erected between them as required under the rules.

The focus of the case is likely to be on how the owners of the cinema hall Gopal Ansal and Sushil Ansal got away with lesser punishments of two years each under Section 304A of the IPC. As the AVUT points out, the original first information report (FIR) registered by the Delhi Police immediately after the tragedy mentioned that these two accused had allegedly committed offences under Section 304-II. The case was transferred to the Central Bureau of Investigation on June 24, 1997, with an implicit mandate by the then political executive that the charges against the Ansal brothers be diluted from culpable homicide to one of rash or negligent act, the AVUT noted.

The AVUT, which has been closely following the progress of the case, also reveals that Harish Salve, the CBIs counsel, had admitted to the Judge during his arguments that the charges against the Ansal brothers were serious enough to be brought under Section 304-II, pointing to culpable homicide. However, it was too late to invoke Section 304-II. The CBI, right from the beginning of its investigation and prosecution, had pressed for only charges under Section 304A. The arguments on either side had centred around whether they were guilty of a rash and negligent act.

The Judge noted that the Ansal brothers were responsible for causing deviations in the structure of the cinema hall, which obstructed the egress of patrons from the balcony and the cinema building on the day of the tragedy. Specifically, she pointed out that the right-hand exit had totally been closed and one gangway had been reduced to one foot and nine inches instead of three feet and eight inches as required under the rules. They were also responsible for converting the inspection room into a 14-seater box, against the sanctioned plan.

The Judge said in her separate sentencing judgment: The deviations with regard to the seating arrangement in the balcony which resulted in the death of many patrons and injuries to many had been affected with greed in mind without taking note of the injury that may be caused to the patrons. These convicts were entrepreneurs who must have obtained such temporary permits after corrupting the officials of the government. The Judge found the sentence prescribed in the IPC under Section 304A as insufficient, before imposing the maximum custodial sentence, that is, rigorous imprisonment for two years to each of the convicts and a fine of Rs.5,000 each.

As the AVUTs counsel, K.T.S. Tulsi, observed in his written submissions to the Judge during the trial, the closure of the right-side exit itself rendered the Ansal brothers liable under Section 304-II. The illegal permission obtained by them cannot absolve them of the offence, the counsel argued. They committed the acts with the knowledge of the enhanced danger, and the deaths were the direct and proximate results of their acts, he alleged.

The Judge noted that both Sushil Ansal and Gopal Ansal were de facto supervising and looking after the management of Uphaar cinema in all respects at all material times from the beginning and until the tragedy. The licence to run the cinema hall was granted to Sushil Ansal and it remained in his name at all times. Both allowed the installation of the transformer in the premises of the cinema, in order to obtain electricity connection for the cinema, knowing that the position of the transformer was not in accordance with the BIS/sanction plan.

They let the premises of the cinema to various commercial tenants, and allowed deviations in the staircase, blocking the passage for the patrons to reach the terrace and save themselves. Thus, in the Judges own words, the Ansal brothers knew that the disaster was likely because of their omissions. Still, the non-invocation of Section 304-II against them was inexplicable.

Among the other convicts, H.S. Panwar, Chief Fire Officer, Delhi Fire Service, had recommended a No Objection Certificate (NOC) without carrying out an inspection of the cinema hall from the fire safety point of view. He committed breach of duty by omitting to point out the fire hazards and deficiencies in the fire-fighting measures. He was convicted under Section 304A of IPC. Shyam Sunder Sharma and N.D. Tiwari, Administrative Officers of the Municipal Corporation of Delhi (MCD), were also convicted under this provision for issuing NOCs without the required inspection of the cinema hall and for conniving in the making of unauthorised deviations by the Ansal brothers.

Delhi Vidyut Board (DVB) officials B.M. Satija, A.K. Gera and Bir Singh were convicted under Section 304-II for failing to repair the transformer properly on the morning of June 13, 1997, when a minor fire had damaged the DVB transformer at the cinema hall. The accused, being experts in electricity, had the knowledge that if a fire took place again, it was likely to cause the death of patrons in case a cinema show was on, the Judge held.

The Judge also held the managers of the cinema, R.K. Sharma, N.S. Chopra and Ajit Choudhury, guilty under Section 304-II since they had the onerous duty to ensure that a show was not to be run if there was any circumstance that may cause the death of or injury to patrons. They were presumed to have the knowledge that their omissions would cause deaths inside the cinema building. The gatekeeper on duty at the time of the tragedy, Manmohan Uniyal, was also convicted under Section 304-II.

Relatives pay homage

Uniyal did not ensure that the doors of the cinema hall were not bolted. The bolting of the doors imputes knowledge that, if a tragedy occurs, it is likely to cause deaths. Uniyal fled from the hall following the tragedy without unbolting the doors to let the patrons escape from the smoke.

Curiously, the Judge directed that there should be further investigation into the role of persons who had been left out by the CBI. The AVUT has sought the summoning of Amod Kanth, former Deputy Commissioner of Police (Licensing), to be tried as an accused. Kanth had permitted retention of 37 extra seats in the balcony in violation of the Cinematograph Act and even after the Lieutenant Governor of Delhi withdrew the notification allowing installation of additional seats in 1979. The Judge observed that Kanth did not discharge his duty while issuing temporary permits to the cinema hall.

Kanth at present the Central Vigilance Officer with the Delhi Jal Board said that he allowed the 37 extra seats in the balcony following a Delhi High Court order. Tulsi revealed in his written submissions before the Judge that Kanth passed an order on December 24, 1979, allowing the retention of 37 seats that he found to be in substantial compliance of the rules and as per his own personal satisfaction pursuant to his spot inspection, and also after hearing the licensee (Sushil Ansal) personally.

A High Court Division Bench had on November 29, 1979, only directed that the government re-examine the seating capacity of all the cinema halls and decide accordingly. Kanth, Tulsi alleged, had changed his previous stand before the court disallowing those extra seats, and applied different standards with regard to the safety of the occupants of the auditorium on the one hand (where he refused to allow extra seats) and the balcony on the other. By not investigating Kanths role adequately, the CBI allowed aspersions to be cast on the fairness of the prosecution and the trial.

The trial court observed that Amod Kanth, Panwar and PWD Executive Engineer S.N. Dandona (he died during the course of the trial), were equally responsible for not noticing the non-provision of exit on the right side of the balcony. Gangways were not provided as per rules. Such violations resulted in the death of 59 patrons and injuries to 100, it noted.