Scope of a Criminal Appeal by Special Leave
Supreme Court of India
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Author: .....J.
Bench: T.S. Thakur, Gyan Sudha Misra
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITION
CRIMINAL APPEAL NO.597 OF 2010
Sushil Ansal Appellant
Versus
State Through CBI Respondent
(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010, 604/2010, 605-
616/2010 and 617-627/2010)
J U D G M E N T
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
...
(1) The Trial Court held that the management of the cinema had disregarded the requirements of
law and the sanctioned plan, thereby putting the lives of the patrons at risk. The Court found that
there was nothing on record to show that the Ansal brothers (A-1 and A-2) or the Managers of the
cinema for that matter had impressed upon the contractor appointed by them the legal and safety
requirements of maintaining a safe distance between vehicles and the transformer room when they
entered into a parking contract in the year 1988. This, according to the Court, was gross negligence
that contributed to the death of a large number of patrons and injuries to many more. T
....
(j) That the owners of Uphaar Cinema who carried out the structural deviations, the officers of the
MCD who granted 'No Objection certificates for running the cinema hall for the years 1995-96 and
1996-97 respectively despite the structural deviations existing in the cinema building and the
managers of Uphaar Cinema who turned a blind eye to the said deviations and the threat to public
safety caused by them, were the direct cause of death of 59 persons and 100 injured in the cinema
hall. The act of the gatekeeper in fleeing from the cinema hall without unbolting the door of balcony
was also found to be a direct cause of the death of persons inside the balcony
.....
xiii) The managers being directly responsible for the daily functioning of the cinema failed in their
duty to ensure the safety of the patrons seated inside. They grossly neglected their duties to take
measures to prevent fires and follow fire safety regulations, which caused the death of patrons
trapped inside.
xiv) It is writ large that the failure of the owners and management of Uphaar Cinema to adhere to
provisions relating to fire safety caused the death/injury of those who had gone to view the film in
the cinema
....
37. The High Court on the above findings upheld the conviction of Sushil Ansal (A-1) and Gopal
Ansal (A-2). It also upheld the conviction of H.S. Panwar (A-15) for offences punishable under
Sections 304A, 337 and 338 read with Section 36 of the IPC but reduced the sentence awarded to
them under Section 304A to one year rigorous imprisonment without interfering with the fine
imposed by the Trial Court. The High Court also reduced the sentence awarded to the
aforementioned three appellants under Section 337 to three months rigorous imprisonment and
under Section 338 to one year rigorous imprisonment with the direction that the sentences shall run
concurrently including the sentence awarded to Ansal brothers (A-1 and A-2) under Section 14 of the
Cinematograph Act for which too the said two accused persons were convicted.
.....
43. Since this question has several facets to it, we propose to deal with the same under the following
sub-headings to ensure clarity and avoid any possible confusion or repetition:
i) Scope of a criminal appeal by special leave
ii) Rash or Negligent Meaning of
iii) What constitutes negligence?
iv) Difference between Negligence in civil actions and that in criminal cases.
v) The doctrine of causa causans.
vi) Whether Ansal brothers were occupiers of Uphaar Cinema building?
vii) Degree and nature of care expected of an occupier of a cinema building.
viii) Whether the accused were negligent and if so, whether the negligence was gross?
ix) Contentions urged in defence and the findings thereon.
......
(i) Scope of a Criminal Appeal by Special Leave:
44. The scope of a criminal appeal by special leave filed before this Court has been examined in
several pronouncements of this Court over the past few decades. It is unnecessary to burden this
judgment by referring to all those pronouncements, for a reference to only some of those decisions
should suffice. Among them the scope of an appeal by special leave in a criminal matter was
considered by a three-Judge Bench of this Court in Mst. Dalbir Kaur v. State of Punjab (1976) 4 SCC
158 and the principle governing interference by this Court in criminal appeals by special leave
summarized in the following words:
8. Thus the principles governing interference by this Court in a criminal appeal by
special leave may be summarised as follows:
(1) that this Court would not interfere with the concurrent finding of fact based on
pure appreciation of evidence even if it were to take a different view on the evidence;
(2) that the Court will not normally enter into a reappraisement or review of the
evidence, unless the assessment of the High Court is vitiated by an error of law or
procedure or is based on error of record, misreading of evidence or is inconsistent
with the evidence, for instance, where the ocular evidence is totally inconsistent with
the medical evidence and so on;
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(3) that the Court would not enter into credibility of the evidence with a view to
substitute its own opinion for that of the High Court;
(4) that the Court would interfere where the High Court has arrived at a finding
of fact in disregard of a judicial process, principles of natural justice or a fair hearing
or has acted in violation of a mandatory provision of law or procedure resulting in
serious prejudice or injustice to the accused;
(5) this Court might also interfere where on the proved facts wrong inferences of law
have been drawn or where the conclusions of the High Court are
manifestly perverse and based on no evidence: It is very difficult to lay down a rule of
universal application but the principles mentioned above and those adumbrated in
the authorities of this Court cited supra provide sufficient guidelines for this Court to
decide criminal appeals by special leave. Thus in a criminal appeal by special leave,
this Court at the hearing examines the evidence and the judgment of the High Court
with the limited purpose of determining whether or not the High Court has followed
the principles enunciated above. Where the Court finds that the High Court has
committed no violation of the various principles laid down by this Court and has
made a correct approach and has not ignored or overlooked striking features in the
evidence which demolish the prosecution case, the findings of fact arrived at by the
High Court on an appreciation of the evidence in the circumstances of the case would
not be disturbed.
45. In Radha Mohan Singh @ Lal Sahib and Ors. v. State of U.P. (2006) 2 SCC 450, this Court
declared that it will not normally enter into reappraisal or review of evidence in an appeal under
Article 136 of the Constitution unless the Trial Court or the High Court is shown to have committed
an error of law or procedure and the conclusions arrived at are found to be perverse. To the same
effect is the decision of this Court in Raj Narain Singh v. State of U.P. and Ors. (2009) 10 SCC 362,
where this Court held that the scope of appeal under Article 136 of the Constitution was very limited
and that this Court does not exercise overriding powers under the said provision to reweigh the
evidence and disturb the concurrent findings of fact reached upon proper appreciation. We may also
refer to the decision of this Court in Surendra Pal and Ors. v. State of U.P. and Anr. (2010) 9 SCC
399 where this Court held that it could not embark upon a re- appreciation of the evidence when
both the Sessions Court and the High Court had agreed in their appreciation of the evidence and
arrived at concurrent findings of fact. This Court cautioned that it was necessary to bear in mind the
limited scope of the proceedings under Article 136 of the Constitution which cannot be converted
into a third appeal on facts and that mere errors are not enough to attract this Courts invigilatory
jurisdiction. A similar view was expressed by this Court in Amitava Banerjee v. State of West Bengal
(2011) 12 SCC 554 and Mohd. Arif v. State (NCT) of Delhi, (2011) 13 SCC 621 to which decisions one
of us (Thakur, J.) was a party.
46. Suffice it to say that this Court is not an ordinary Court of appeal obliged to reappraise the
evidence and record its conclusion. The jurisdiction to interfere under Article 136 is extraordinary
and the power vested in this Court is not exercised to upset concurrent findings of fact recorded by
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the two Courts below on a proper appreciation of evidence. It is only in those rare and exceptional
cases where the appreciation of evidence is found to be wholly unsatisfactory or the conclusion
drawn from the same perverse in nature, causing miscarriage of justice that this Court may correct
the course of justice and undo the wrong. Perversity in the findings, illegality or irregularity in the
trial that results in injustice or failure to take into consideration an important piece of evidence are
some of the situations in which this Court may reappraise the evidence adduced at the trial but not
otherwise. The scope of interference with the findings of fact concurrently found by the Trial Court
and the First Appellate Court is thus permissible as a rarity only in the situations enumerated above
and not as a matter of course or for mere asking.