SUSHIL ANSAL Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) By this bail application under Section 439, Criminal Procedure Code ., the petitioner prays for bail in F.I.R. No. 432 of 1997, P.S. Hauz Khas, New Delhi for the offences under Sections 304/436/427/337/338/285/287, Indian Penal Code, which relates to an incident of fire which broke on 13.6.1997 at about 5 p.m. in Uphaar Cinema building, Green Park, New Delhi. In this incident about 59 persons, who were in the theatre viewing film "Border", lost their precious lives and about 103 person suffered injuries.

(2.) It is submitted by Mr. Ram Jethmalani, learned Senior Counsel for the petitioner that the petitioner was a Director of M/s. Green Park Theatres Associated Private Limited, which Company owns Uphaar Cinema, which has since been changed to M/s. Ansal Theatres and Clubotels Private Limited; that the petitioner resigned as the Director in 1988; that another Director, who retired in March, 1995, has been granted bail by the Sessions Court; that the licence for running the cinema is issued in 1970 and renewed from time to time till the date of incident; that the cinema business is run by the family concern and that the petitioner is not a stranger; that the last overtact of the petitioner was of signing an affidavit in 1992 for renewal of the cinema licence; that there is no other overtact thereafter by the petitioner associating himself with the theatre or its activities; that only Section 304 Part-II, Indian Penal Code would be the non-bailable offence from amongst the offences alleged whereas rest of the offences alleged are bailable; that Section 436, Indian Penal Code was not pressed in the Sessions Court by the prosecution; that bail is a rule; that it would be Section 304A, Indian Penal Code which would beat the most attracted to the facts of the present case; that act must be "causa causan", that petitioner was admittedly not present in the theatre (this statement is not disputed by the learned Prosecutor); that the "causa causan" is the fire in the transformer which is maintained by the public body i.e. Delhi Vidyut Board (DVB) and not by the petitioner; that this transformer provides power supply to the entire colony and it is the transformer of the DVB; that at 7 a.m., the transformer had caught fire and the same was repaired and put to operation; that the said repair was defective; that Uphaar Cinema does not get the electric supply from this transformer but the same is installed in the basement of the theatre under an agreement with DVB; that the negligence of the DVB employees is prima-facie established by report and that they have been denied bail by the Sessions Court; that there cannot be two "causa causans", that the generator takes overtact the time of load shedding; that the generator was switched off by an employee to avoid fire and because of that there was darkness in the hall following the incident; that the death of the viewers was because of the smoke, suffocation and stampede that there is no, death/casualty in the cinema hall; that there is no finding given by the Sessions Court that the petitioner would be guilty under Section 304 Part-II, IPC; that Section 304-A, Indian Penal Code is not referred to at all in the order refusing bail by the Sessions Court; that what is required to be seen is that what is the "causa causans" that there cannot be a criminal liability for vicarious liability unless the vicarious liability is created by the statute; that the act of negligence must be a personal act for attracting criminal liability; that the criminal negligence has to be gross in order to attract criminal liability; that the petitioner has cause of action against the DVB for negligence in view of the fire at 7 a.m. in the transformation and the repair of the transformer and putting the same to operation; that there is a full time Director Mr. Puri for the day-to day working and management of the theatre; that there is no finding by the Sessions Court about the prima-facie case against the petitioner; that nature and character of the offence and the evidence has also to be considered by the Court while deciding the application under Section 439, Criminal Procedure Code . and that looking to the same there is no possibility of tempering with the evidence; that the facts are admitted; that the larger interest of the public/society is that there must be proper investigation into the offences alleged; that the petitioner only did clerical work and that too not after 1992; that Section 304 Part-II, Indian Penal Code is out of question; that Section 120-B, Indian Penal Code cannot be invoked for negligence since the petitioner would not conspire for setting his own theatre to fire. As against this, it is submitted by Mr. Jamuar, learned Counsel for the respondent-CBI that there is no direct evidence for the offence under Section 436, Indian Penal Code qua this petitioner; that an application is made for adding offences under Sections 120-B/468/471, IPC; that for the present purpose, Sections 468/471, Indian Penal Code are not relied on; that today also, the licence of the cinema is in the name of the petitioner and he also controls the finance and has also been participating in the security/safety arrangements; that the investigation is in progress and at a crucial stage; that the Chowkidar as per the F.I.R. goes to the terrace by rope then what would be the condition of the viewers in the cinema hall, that there were insufficient exits; that possibility ofempering with evidence cannot be ruled out, especially, when the investigation is at the crucial stage; that there were no emergency light in the hall; that only two exists were in the balcony; that the transformers were also for the theatre and that from the transformer, through the generator, electricity is provided to the theatre premises; that there is no escape door; that the statutory requirements have been given go-bye. In substance, it is contended that no bail should be granted at this stage; that the petitioner is the real person and the investigation would be prejudiced; that the incident started with the fire in the transformer, that the death is not because of the fire but because of the absence/insufficiency of the safeguards.

(3.) The learned Counsel for the respondent-CBI has relied on the decision in the case of Tushar Kanti Ghosh-petitioner reported in 1996 Crl.L.J. p. 1557. The Division Bench of the Calcutta High Court, while considering the application under Section 438, Criminal Procedure Code . for release before arrest, popularly called anticipatory bail application in light of the facts that the accused District Building Surveyor working with Municipal Corporation granted partial occupation of multi storeyed building on the basis of his fitness report. The building was according to the sanctioned plan but some deviation effected and the accused certifying that the building was fit in all respects and was, according to statute and statutory rules, the act was regarded not with intention to cause death or bodily injuries as is likely to cause death but it was presumed that the act was done with knowledge that structural deviation of building could result in collapse of building resulting in death. The relief under Section 438, Criminal Procedure Code . was refused.