Uphaar Fire Tragedy: Supreme Court Quashes Proceedings Against Former IPS Officer Amod Kanth For Not Obtaining Sanction Under S 197 CrPC

The Supreme Court on Thursday(April 20) ruled in favour of the ex IPS officer Amod Kumar Kanth in the connection with a case pertaining to the Uphaar fire tragedy which happened in 1996. The Court has set aside the Magistrate’s order taking cognisance of a complaint against Kanth, who allegedly did not take action against “extra seats” in the Uphaar theatre hall which had blocked the emergency exit at the right-hand side of the balcony, resultantly killing over 50 people.

A Bench of Justices KM Joseph, BV Nagarathna and Aravind Kumar passed the order after noting that the necessary sanction under section 197 of the Code of Criminal Procedure [CrPC] was not obtained before summons was issued to him.

“In the light of the facts, we find that the Magistrate erred in taking cognizance against the appellant contrary to the demands of section 197 of the CrPC. On that short ground alone, the appellant succeeds. The proceedings against the appellant stand quashed.”

However, the Court made is clear that the order would not stand in the way of the competent authority taking a decision in the matter or granting sanction for prosecuting the appellant in accordance with law.

The Court stated :

“The most important question is must we, when answered by the courts dealing with the argument of sanction, is whether the officer was acting in exercise of his official duties…..It goes further, even an officer who has purported exercise of his official power is given the protection under Section 197. This is for the good reason that when he exercises or go about exercising the same, no doubt with bonafides, as all public functionaries can act only for bona-fide reasons. In fact, the action being bona-fide is not expressly stated in Section 197 though found in many other statues protecting public servants against civil and criminal action”.

Adding on, the Court said,

“Once we bear this cardinal principle in mind, the action or omission, we would think that it cannot be found having regard to the admitted acts, the appellant was not acting in the discharge of his official function, all that happened was under his oversight….As we have already noted, even if it were to be that the actions were done in exercise of his official function, he would still stand protected from prosecution without sanction.”

The judgement pronounced by Justice Joseph also highlighted that this mustn’t be confused with whether the appellant had committed any offence, due to which the Magistrate had issued summons.

The Bench also discussed the scope of section 197 of the IPC in its judgement.

“When we consider the question of cognizance being taken in the absence of sanction being flawed, it should not conflate and get confused with the question as whether an offence has been committed. The statutory purpose of behind section 197 CrPC is the protection being accorded to public servants. The functions they undertake maybe sovereign or not sovereign. Each of the functions performed by every officer for public good may come with discretion. Exercise of the power cannot be diverse from the context and time at which it is exercises. Or, if it is the case of an omission, the omission takes place.”

Key Arguments of Parties

The day-long arguments of parties started with the senior counsel Aparajita Singh, appearing for the CBI. At this point, the Bench was hearing another plea pertaining to the de-sealing of the Uphaar cinema hall.

The Counsel for the CBI stated that there were 59 deaths on the balcony and over 100 injuries.

“There were 3 exits. Because of the change in the seating plan, the right-hand exit at the balcony was blocked.”

After taking the Court through the site plan, the counsel informed that nobody in the main hall died. “People (seated at the balcony) didn't die because of the fire but because of asphyxia - carbon monoxide poisoning”, she said.

“Amod Kanth, the DCP, if he says that these plans were admitted, we are ready to de-seal the property and return it (to the owners)”

“Don't say anything about the DCP. He is not before us”, the Bench initially said.

Senior Advocate R Basant, appearing for the 76-year-old ex IPS officer, then stated that the latter was the licensing authority for theatres during 1979-1980.

“This (Uphaar fire tragedy) happened 18 years after my tenure”.

The Bench then asked the CBI counsel, “How can something be admitted before trial before some other forum”? While discussions continued, the Bench decided to take up Kanth’s challenge against the High Court order.

Basant argued that the High Court order upholding the order of the Magistrate issuing summons was an “incurable illegality”. The subordinate courts overlooked the mandatory command in section 197 of the CrPC.

He went on to argue that cognizance was taken against the appellant for offences comprehended within the ambit of CrPC. Without seeking and obtaining sanction was prescribed, the Magistrate proceeded to cognizance; wrong in law.

Singh argued that according to the DCR Rules, there should be one exit for 100 people. There were 300 plus number of people seated at the balcony and so, there were three exits, of which one was blocked due to extra number of seats.

“Can any reasonable officer allow closure of exit at right-hand side? Can you say that you were not aware of your consequences of your action?”, Singh rhetorically asked while adding that it was an omission within scope of his duty.

“Finding of three courts below is that this is a violation because there should have been three exits”, she added.

“At least for the offence under section 304A of IPC, if authorities don't grant sanction, your Lordships should direct them to grant sanction”, she stated.

The idea for maintaining the correct number exits is a “speedy exit” in case of an emergency. “Any reasonable person examining the balcony won't approve of having an exit closed”, she said while adding even while he’s wearing the robes of a public servant, he can’t claim immunity under section 197 of the CrPC.

The bench has now listed the matter for further hearing on April 26 regarding the de-sealing of the theatre.

Case Title: Amodh Kumar Kanth vs AVUT(Association of The Victims of Uphaar Tragedy) | Crl. (A) 1359/2017