14. Thus, the emerging position is – Both Thakur, J. and Gyan
Sudha Misra, J. were in agreement as far as minimum period of
one year sentence is concerned. However, Gyan Sudha Misra, J.
was also of the view that in the nature of the tragedy and the
negligence on the part of A-1 and A-2 and Delhi Vidyut Board,
they should pay a hefty amount of fine for the purpose of
construction of a trauma centre. Yet, Gyan Sudha Misra, J. took
note of the fact that Sushil Ansal has served major part of the
sentence and considering also his age, took the view that the
sentence already undergone by him should be treated as
sufficient.
15. A close reading of the Order passed by Gyan Sudha Misra,
J. would show that recovery of a large amount by way of fine to be
used for the trauma centre was the underlying idea in enhancing
the punishment. The three-Judge Bench, on Reference, also took
the view that in larger public interest, the view taken by Gyan
Sudha Misra, J. should be upheld, but reduced the fine to Rs. 30
crores each, apparently keeping in mind that the victims had
already been compensated and that even, according to Gyan
Sudha Misra, J., A-1 and A-2 and Delhi Vidyut Board are liable to pay the fine (paragraph-262).
16. Thus, Gyan Sudha Misra, J. and three-Judge Bench took
the view that as far as A-1-Sushil Ansal is concerned, taking note
of his age related complications, the period already undergone by
him should be sufficient, in case he pays Rs.30 crores.
17. On principle of parity, the same benefit was extended to
A-2-Gopal Ansal; but he never had a case of any age related
complications. Therefore, it is not a case to apply the principle of
parity. To that extent, the Order needs to be reviewed.
18. Yet another error is the substitution of sentence by fine. At
paragraph-18 of the Order under Review, agreeing with the view
expressed by Gyan Sudha Misra, J., the Bench enhanced
punishment to the maximum period of two years but substituted
the additional period of one year with substantial amount of fine.
The idea was to impose a heavy fine and utilize the same for the
benefit of the public, as has been done in the case of State
Through PS Lodhi Colony, New Delhi v. Sanjeev Nanda3,
popularly known as “BMW hit and run case”. In that case, the
conviction under Section 304-A was altered to 304 Part-II but reduced the period of sentence to the one already undergone and
the court imposed a fine of Rs.50 lakhs to be used for the benefit
of the victims in hit and run cases. There was also an order on two
years of community service. In the peculiar facts of the present
case, in larger public interest, Gyan Sudha Misra, J. and the
3 (2012) 8 SCC 450
three-Judge Bench essentially only thought it appropriate to
modify the punishment to imposition of heavy fine in addition to
the sentence of imprisonment.
19. Imposition of expiatory fine in addition to incarceration
would also serve the penalogical purpose of deterrence having
regard also to recidivism. It may also be noted that under Section
304 A of IPC, either imprisonment only or with fine or fine alone, is
the prescribed punishment. Having regard to the wide discretion
available to the court under Section 304 A, and having regard to
the fact that the High Court and this Court, in appeal, had limited
the imprisonment to one year, in our view, the punishment which
would serve deterrence and public purpose by both imprisonment
and exemplary fine, would be an appropriate punishment in a
case like this. Under Section 63 of IPC where no sum is expressed to which a fine may extend, the amount of fine to which the
offender is liable is unlimited, but should not be excessive. Having
regard to the gravity of the offence and the illegal gains made by
the accused, the fine imposed to the tune of Rs.60 crores is not
excessive. However, there is no provision under the IPC for
substitution of sentence by fine. The only provision is on default
sentence under Section 65 of IPC. Hence, that part also requires
correction.
20. Thus, the Orders dated 19.08.2015 and 22.09.2015 stand
reviewed in the manner indicated herein below:
(i) In the case of A-1-Sushil Ansal, having regard to the advance
age related complications, as appreciated by the three-Judge
Bench in the Order dated 22.09.2015, and having regard to
the fact that, of the one year period imposed by the High
Court, he has already undergone around nine months
including remission, his sentence of imprisonment is reduced
to the period undergone. However, he is also sentenced to a
fine of Rs.30 crores. Thus, in the peculiar facts of the case,
as appreciated by Gyan Sudha Misra, J. and the three-Judge
Bench, we decline the prayer for review of sentence on JUDGMENT
A1-Sushil Ansal.
(ii) In the case of A-2-Gopal Ansal, the period of sentence of one
year imprisonment, as imposed by the High Court and
concurred both by Thakur, J. and Gyan Sudha Misra, J., is
maintained, but he is also sentenced to a fine of Rs.30
crores.
(iii) The fine thus recovered should be utilized for the purposes
indicated by Gyan Sudha Misra, J. in the Order dated
05.03.2014.
(iv) In default of payment of fine, both A-1 and A-2 shall undergo
six months imprisonment, the maximum permissible under
Section 65 of IPC.
(v) A-2-Gopal Ansal is granted four weeks time to surrender and
serve the remaining sentence.
CRIMINAL APPELLATE JURISDICTION
IN
CRIMINAL APPEAL NOS. 600-602 OF 2010
ASSOCIATION OF VICTIMS OF UPHAAR TRAGEDY ...Petitioner(s)
VERSUS
SUSHIL ANSAL & ANR. ...Respondent(s)
W I T H
IN
CRIMINAL APPEAL NOS. 597, 598, 605 & 606 OF 2010
O R D E R
1.These Review Petitions seek review of the Orders of this Court dated 19.08.2015 & 22.09.2015 in Criminal Appeal Nos. 600-602 and Criminal Appeal Nos. 597,598, 605 and 606 of 2010. Since arguments have been addressed only with regard to the sentence awarded to accused Sushil Ansal and Gopal Ansal, consideration in this order is confined to this aspect.
2.The matters arise out of an incident dated 13.06.1997 of fire in Uphaar Cinema, Delhi wherein 59 persons lost their life and about 100 persons were injured. On charge of criminal negligence, apart from others, Sushil Ansal the licencee for running the cinema and his brother Gopal Ansal who was in fact conducting the business of cinema, were convicted under Sections 304-A, 337, 338 read with Section 36, IPC. The Trial Court sentenced them to undergo imprisonment upto two years which was reduced by the High Court to one year. A two Judge bench of this Court, dealing with their appeals against conviction and sentence, vide order dated 05.03.2014, upheld the conviction but differed on the quantum of sentence. The said judgment is reported in Sushil Ansal versus State Through CBI (2014) 6 SCC 173. In view of difference of opinion the matter was referred to the three Judge Bench “to the extent that the said appeals involve the JUDGMENTquestion of quantum of sentence to be awarded to the convicted appellants in the appeals mentioned above”.
3.The Three Judge Bench vide order dated 19.08.2015 held as follows : “…the sentence awarded by the High Court needs to be enhanced to the maximum period of two years under Section 304-A but in lieu of additional period of sentence of one year, the substantial amount of fine needs to be imposed. We are further of the view that in case the said amount of fine is paid, the sentence should be reduced to the period already undergone, as indicated by Misra, J. in the case of Sushil Ansal (A1). On the principle of parity, the case of Gopal Ansal (A2) will stand on the same footing as that of Sushil Ansal (A1). Thus, we are of the considered opinion that ends of justice would meet if the appellants are directed to pay fine so that the amount of fine 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 of Delhi by the Government of Delhi. 19. We, therefore, direct that a fine of Rs.30 crore on each appellant should be imposed and if the said fine is paid within a period of three months, the sentence of the appellants be reduced to the sentence already undergone. We have noted the fact that as appellant no.1 is fairly aged, it may not be fruitful to ask him to undergo rigorous imprisonment. On the ground of parity and on the peculiar facts of this case, so far as appellant no.2 may also not be constrained to undergo the sentence, if he also pays the same amount of fine. If the aforestated amount is not paid within three months from the date of order dated 19th August, 2015, the appellants shall undergo two years’ rigorous imprisonment, including the sentence already undergone.”
4.The review is sought mainly on the ground that once the Court expressed the view that sentence was required to be enhanced, the same could not be directed to be reduced on payment of fine. Reference has been made to Sections 63-65 of IPC which are as follows: “63. Amount of fine.- Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. 64. Sentence of imprisonment for non-payment of fine. In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine. it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence. 65. Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable.--The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine.”
5.It was submitted JUDGMENTthat the default sentence cannot exceed ¼ of the term of imprisonment prescribed for the offence. It was also submitted that undue sympathy in imposing inadequate sentence may lead to miscarriage of justice. There should be element of fear in the mind of offender for which adequate sentence was required to be imposed. It was also submitted that sentence prescribed under Section 304-A IPC was required to be revisited by the law makers in light of observation of this Court. In support of these submissions, reference has been made to several judgments1 to which detailed reference does not appear to be necessary as there is no dispute about the principle that adequate sentence as warranted in a fact situation has to be awarded by a Court.
6.Opposing the above submissions learned counsel for Sushil Ansal and Gopal Ansal submitted that there is no patent error which may justify invocation of review jurisdiction. The arguments now sought to be raised were before the Court when the order was passed by this Court. The review petition cannot be treated as an appeal in disguise. Mere possibility of two views cannot be a ground for review. Reference was also made to several decisions of this Court2, where long delay in Guru Basavaraj v. State of Karnataka (2012) 8 SCC 734 Pritam Chauhan v. State (Govt. of NCT of Delhi) (2014) 9 SCC 637 State of Punjab v. Saurabh Bakshi (2015) 5 SCC 182 State of Punjab v. Balwinder Singh (2012) 2 SCC 182 State of Karnataka v. Sharanappa Basanagouda Aregoudar (2002) 3 SCC 738 & (2002) SCC (Cri) 704. Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 Rattan Singh v. State of Punjab (1979) 4 SCC 719 JUDGMENT State of M.P. v. Surendra Singh (2015) 1 SCC 222 Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770 2 State of M.P. v. Mehtab (2015) 5 SCC 197 Manish Jalan v. State of Karnataka (2008) 8 SCC 225 V.K. Verma v. CBI (2014) 3 SCC 485 Labh Singh . v. State of Haryana (2012) 11 SCC 690 Nand Lal v. State of Uttarakhand . (2010) 4 SCC 562 Beena Philipose. V. State of Kerala (2006) 7 SCC 414 Devi Ram v. State of Haryana (2002) 10 SCC 76 Beyas Mahto v. State of Bihar (2000) 9 SCC 509 R.V. Lyngdoh v. State (Delhi) Spl. Estt. (1999) 9 SCC 645 pendency of proceedings, age, health and other factors have been taken into account for awarding sentence lesser than the maximum prescribed. It is not necessary to refer to the said decisions also as it is well settled that the sentence has to be awarded in the light of nature of offence, prescribed sentence, over all fact situation, mitigating and aggravating circumstances, including age of the offender, his background, possibility of return to normal life and need of the society.
7.It was submitted that since relief can be moulded in individual cases having regard to the fact situation, the sentence awarded in the present case is not in any manner illegal nor unjustified so as to be held to suffering from a patent error.
8.I have given deep consideration to the rival submissions and perused the record as well as the decisions relied upon by the learned counsel for the parties.
9.It may first be clarified that the reference before Three Judge JUDGMENT Bench on account of difference of opinion on question of sentence was not limited to selection of one out of the two conflicting opinions but to determine the quantum of sentence in view of difference of opinion as the reference order quoted hereinabove clearly shows3. It may further be noted that it is not factually correct to assume that there was no 3 (2014) 6 SCC 173, pg 332, Para 270.4, difference of opinion for imposing at least one year sentence. In para 269 (of SCC supra), Misra, J. observed --“Thus, the appeals bearing Nos.597-598 of 2010 preferred by the appellants/respondents Sushil Ansal and Gopal Ansal are dismissed except that the sentence imposed on Appellant1 Sushil Ansal is reduced to the period already undergone considering his advanced age.” In para 263, it was observed that … “Hence, while the sentence of one year awarded in Criminal Appeal No. 597 of 2010 to Sushil Ansal is fit to be upheld, the sentence already undergone by him may be treated as sufficient in the said appeal as he has already served a major part of the sentence and in spite of dismissal of his appeal, he would at the most serve the balance three months’ sentence further along with remission.” In the order of Three Judge Bench reference to the above observations have been made in the part of order already quoted above.
10.As regards Section 65 IPC which puts a limit of imprisonment for default sentence upto ¼ of the term of imprisonment, the grievance JUDGMENT against higher default sentence, if any, can be only by the accused and not by the State. Moreover, it is not a case of higher default sentence being awarded but of giving option to pay higher for reduced sentence. There is, thus, no conflict with sentence prescribed by IPC as submitted by the review petitioners. There is also no merit in the contention that once the Court felt that higher sentence was required to be imposed, sentence less than one year cannot be awarded. Order of the Court has to be seen as a whole and cannot be split into different sentences 4. The operative part of the order has already been quoted hereinabove which shows that the Court has tried to balance the interest of justice and while holding that sentence was required to be enhanced, it was added that in lieu of additional period of enhanced sentence, substantial amount of fine was required to be imposed and the fine was to be utilized for setting up of or upgrading the trauma centres of hospitals managed by the Government of Delhi. It was also noted that having regard to the advanced age of Sushil Ansal (who was 74 years as per observations in Order dated 05.03.2014 and now must be 77 years) and who had already undergone sentence of 5-6 months and with remission of 9 months out of sentence of one year awarded by the High Court, further imprisonment was not necessary if he paid the imposed fine. Same sentence was applied to Gopal Ansal. Same principle was also followed for some other accused which has not been JUDGMENT challenged. It is also necessary to mention that higher fine cannot be read as extra benefit to a rich person but has been imposed on account of capacity to pay. There is neither any illegality nor any impropriety warranting review of said order passed by this Court. 4 Goan Real Estate and Construction Ltd. vs. Union of India (2010) 5 SCC 388, para 31
11.For above reasons, there is no merit in the Review Petitions and the same are dismissed. [ADARSH KUMAR GOEL] NEW DELHI 9th February, 2017.