The argument that the incident in question was not reasonably foreseeable must in the light of what is stated above be rejected

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)
(viii) Whether the accused were negligent and if so, whether the negligence was gross:
115. The Courts below have concurrently found that the occupiers of the cinema building had
committed several deviations from the sanctioned building plan apart from breaches of statutory
provisions. These deviations and breaches may not have directly contributed to the death of the
victims in the instant case but the same cannot be said to be wholly irrelevant for purposes of
determining whether or not the occupiers had neglected their duty to care and if they had, whether
such neglect was gross in nature. The concurrent findings of the Courts below in the nature of
deviations from the sanctioned building plan of the cinema and the statutory requirements may be
enumerated as under:-
(1) That the occupiers permitted the installation of a DVB transformer within the cinema premises,
although the building plan did not envisage or permit any such installation. The occupiers
contention that the installation of the transformer was under coercion remained unsubstantiated.
(2) That the rear parapet wall behind the transformer room was constructed upto the ceiling height
thereby preventing smoke rising from the burning transformer oil and the cars parked in the
parking area from dispersing into the open atmosphere.
(3) That the stairway leading to the terrace was obstructed by the installation of a full width door in
the staircase landing as well as construction of a reception counter in the staircase leading to the
terrace by Sarin Associates one of the tenants inducted by the owners.
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(4) That the exhaust fans opened into the staircase rather than into an open space thereby defeating
the purpose of their installation.
(5) That a homeopathic dispensary was constructed above the ramp behind the transformer room
which was found to be and described as a fire hazard during MCD inspections since 1983.
(6)That the staircase around the lift leading to the basement was being used by M/s Sehgal Carpets
by conversion of that area into an office was an additional hazard and against the sanctioned plan.
(7) That the enclosure of the open space adjoining the transformer room to be used as a ticket
counter and the creation of a glazed verandah next to the Managers room were also deviations from
the building plan.
(8) That conversion of the Operator room on the second floor into an office-cum-bar room too was a
deviation.
(9) That letting out of the top floor as office space with wooden partitions was also a deviation and
was pointed out to be a safety hazard during fire safety inspections.
(10) That out of 22 fire extinguishers seized after the incident from various parts of the building
including the parking lot and balcony, 10 were empty, 4 were not working properly while 1 was
leaking from the top. This meant that only 7 of such extinguishers were in working condition.
(11) That neither the Projector Operator nor any other person present during the exhibition of the
cinematograph was trained in fire fighting as required in DCR 1953.
116. The above deviations, it was rightly contended by Mr. Jethmalani did not constitute the causa
causans for the death of the victims in the instant case. Even so two inferences are clearly available
from these deviations namely (i) That the occupiers of the cinema building were not sensitive
towards the demands of safety of the patrons and amply showed that the safety of the visitors to the
theatre was a matter of low priority for the occupiers and (ii) That the deviations raised the level of
risk to the safety of the patrons which in turn required the occupiers to proportionately raise the
level of their vigil and the degree of care in regard to the safety of those visiting the cinema. Instead
of removing the deviations and the perceived fire hazards and thereby reducing the risk of exposing
the patrons to avoidable dangers to their safety the occupiers committed several breaches that
directly contributed to the loss of valuable human lives. For instance both the Courts have
concurrently held the following breaches to have been established, by the evidence adduced by the
prosecution:
1) That the cinema did not have any functional Public Address System necessary to
sound an alarm in the event of a fire or other emergency. The PA system of the
cinema was found to be dysfunctional at the time of the occurrence hence could not
be used to warn or to sound an alarm to those inside the cinema to exit from the hall
and the balcony.
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2) That the emergency lighting even though an essential requirement and so also the
well-lit exits stipulated under the DCR 1953 were conspicuous by their absence. The
failure of the electric supply on account of tripping of the main supply lines
consequently plunged the cinema hall and the balcony area into darkness leaving
those inside the balcony panic stricken and groping in the dark to find exits in which
process they got fatally exposed to the carbon monoxide laden smoke that had filled
the hall.
3) That blocking of the vertical gangway along the rightmost wall and the narrowing
of the vertical gangway along the right side of the middle exit by installation of
additional seats had the effect of depriving the patrons of the facility to use the right
side gangway and the gangway along the middle exit for quick dispersal from the
balcony
4) That the closure of the right side exit in the balcony area by installation of a private
eight-seater box permanently cut off access to the right side staircase and thereby
violated not only the DCR 1953 but also prevented the patrons from using that exit
and the right side stairway for quick dispersal from the balcony.
5) That the introduction of the new exit in the left wing of the balcony in lieu of the
closed right side exit did not make up for the breach of Para 10 (4), First Schedule of
DCR 1953 which mandates that exits on both sides of the auditorium/balcony.
6) That failure to introduce fourth exit even when the total number of seats in the
balcony had gone above 300 with the addition of 15 more seats installed in 1980,
further compromised the safety requirements statutorily prescribed under the DCR.
7) That bolting of the middle entry/exit doors leading into the foyer obstructed the
flow of patrons out of the balcony exposing them to poisonous gas that spread into
the hall for a longer period then what was safe for the patrons to survive.
8) That the absence of any staff members to open the exit gates and to generally assist
the patrons in quick dispersal from the balcony resulted in the patrons inhaling
poisonous gas and dying because of asphyxiation.
9) That the bolting of the door leading from the foyer into the right side staircase and
outside which had to be forced open also prevented the quick dispersal and led to a
large number of causalities.
10) That construction of the refreshment counter near the exit gate of the first floor
and another near the second floor inhibited free passage of the patrons.
117. That the breaches enumerated above have been proved by the evidence adduced at the trial is
concluded by the concurrent findings recorded by the two Courts below. There is, in our opinion, no
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perversity in the conclusions drawn by the Courts below on the aspects enumerated above. In the
light of those conclusions it can be safely said that the occupiers had committed a breach of their
duty to care and were, therefore, negligent.
118. The argument that the incident in question was not reasonably foreseeable must in the light of
what is stated above be rejected. So also, the argument that since no untoward incident had
occurred for many years prior to the occurrence that claimed so many lives, the same indicated that
the occurrence was not reasonable foreseeable deserves to be mentioned only to be rejected. A
similar contention had in fact been rejected by this Court even in Kurban Husseins case (supra),
where this Court said :
In particular it is urged that this method of work has been going on for some years
and no fire had broken out and this shows that though there may have been possible
danger to human life from such fire or combustible matter there was no probable
danger. We are unable to accept this contention. The fact that there was no fire
earlier in this room even though the process had been going on for some years is not
a criterion for determining whether the omission was such as would result in
probable danger to human life.
119. To the same effect is the observation made by this Court in State through PS Lodhi Colony, New
Delhi v. Sanjeev Nanda (2012) 8 SCC 450, where this Court held that just because the accused in
that case had driven for sixteen kilometers without any untoward incident did not by itself provide
him a defence, or prove his innocence.