Uphaar Cinema Case – Is Review Of Review Permissible?

Uphaar Cinema Case – Is Review Of Review Permissible?

Gopal Ansal, who has been convicted of “criminal negligence” under Section 304-A, IPC by the Supreme Court and ordered to surrender in the 1997 Uphaar Cinema fire tragedy vide judgment and order dated 09.02.2017, recently moved an application seeking modification of the order on medical grounds claiming parity with his brother Sushil Ansal who was let off with the sentence already served because of his old age and ailments. At the very threshold, it is very important to know that there are multiple judicial findings that Sushil Ansal was the licencee for running the cinema and Gopal Ansal was the actual one conducting the business of cinema. It is also well established that age and ailment was never the case of Gopal Ansal at all till now and there are categorical findings that Gopal Ansal never had any age related medical issues.

The matter was mentioned in front of CJI on 28.02.2017 where the CJI passed the following directions :

“ Post on 03.03.2017 subject to there being no office objection”

Since the matter was not listed on 03.03.2017, Ram Jethmalani once again mentioned the matter to CJI without informing AVUT or CBI.  CJI passed the following orders:

“ Post for consideration on 06.03.2017 , as per roster.”

The Registrar of the Supreme Court, refused to register the same holding that it will amount to re-agitation of the matter which is impermissible. The matter (the modification application along with the appeal against Registrar’s order) is surprisingly posted before a bench of Justice Gogoi and Navin Sinha on 06.03.2017 in Court 4 as Item 54 which is a lesser quorum than 3 judges who passed the order dated 09.02.2017.

Diametrically opposite to how rapidly things have been set in motion for Gopal Ansal, let us have a quick flashback of how the same justice system treated the victims. While upholding the conviction of both Sushil and Gopal Ansal on 05.03.2014, the Supreme Court had disagreed with regard to the quantum of the sentence.The matter was referred to a larger bench to decide the quantum of sentence. Since the matter was not listed, AVUT moved an application for early hearing .The application was listed in the court of CJI on 08.10.2014, but it was dismissed with liberty to renew the prayer in a week’s time. On 27.10.2014, the matter was mentioned to CJI again, but it was told that it could wait.In January 2015, AVUT and the CBI moved an application for an early hearing of the appeals before CJI again. The matter was listed in April but the same was adjourned at the request of the Ansals. The matter was finally listed for hearing on the 19.08.2015, seventeen months after the conviction!

On 19.08.2015, Ram Jethmalani commenced his arguments at 10:40 am. The arguments continued after lunch and at around 3.30 p.m., the judges indicated to the counsel for the Ansals that he should conclude his arguments. Tulsi commenced his arguments at 3.40 p.m. The judges had some query regarding the trauma centre, which he addressed but he could not get an opportunity to make his arguments on sentencing. At around 3.50 p.m., a few minutes after Tulsi started his arguments, the judges asked the CBI counsel to present their case.  The CBI counsel requested that the matter be listed for the next day as Harish Salve was not present. However, the judges insisted that the briefing counsel must argue the matter. It was pointed out that it would not be possible to present the facts of the case in ten minutes and the matter should be listed for the next day. This request was declined summarily and the counsel presented the matter orally without the benefit of any documents. The judgment was therefore pronounced without giving an opportunity to CBI to present their case. Sushil and Gopal Ansal were sentenced to undergo rigorous imprisonment for two years. However, having regard to their advanced age of the convicts and other peculiar facts and circumstances their sentence was reduced to the period already undergone on the payment of Rs 30 crore each to Delhi Government for a trauma Centre.

The next day, CBI counsel, Harish Salve, brought the matter up in court and requested that he be given time to address his arguments.  The bench did not allow the plea and asked the CBI to file a review petition with all the points that had been left out in the hearing. A Review Petition was filed by both AVUT and CBI in the month of October 2015. After a traumatic long span of 16 months the review was listed on 06.12.2016 and an open court hearing was allowed.  The matter came up for hearing on 14.12.2016 and the judgment was finally pronounced on 09.02.2017.Such urgency has today been shown to post the matter for consideration at the behest of Ansals but the same was completely denied to the victims!

It is pertinent to note that Para 263 of the split verdict found that Gopal Ansal was in fact conducting the business of running the Uphaar Theatre and had greater degree of responsibility to ensure safety of the cinema viewers. The period of sentence of one year imprisonment was imposed by the High Court and concurred both by Thakur, J. and Gyan Sudha Misra, J as well. In the judgment and order dated 09.02.2017 there is a categorical finding in Para 17 that earlier on the principle of parity, the same benefit was extended to Gopal Ansal; but he never had a case of any age related complications. Therefore, it was not found to be a case to apply the principle of parity. It was also held in Para 20 that 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.

This application raises few important and interesting questions – Is review of a criminal review permissible in law? Whether filing a curative petition would have been the correct course? Whether listing of his application by skipping other litigants and jumping the queue sends another wrong message of ‘rich tampering with justice’? Whether the Supreme Court ought to now follow settled doctrine of finality of litigation? Whether an application can be allowed to re-alter a judgment by the highest court of the country? Finally whether an application is permissible to be filed to adjust conviction by the Supreme Court on medical grounds which had already been considered and rejected?

Four provisions of law are important here – Article 137 of the Constitution, Section 362 of the Code of Criminal Procedure and Order 8 Rule 15, Order 47, Order 48 of the Supreme Court Rules, 2013. It is trite law that review of a judgment cannot be granted in garb of a clarification/modification. [Dr. Saurabh Chaudri v Union of India : (2004) 5 SCC 618] It is also settled that even a review does not mean or imply an appeal or a re-hearing, an application to review the review is therefore not only perverse but a classic example of abuse of the process of law.  It is also very well settled through a catena of judgments that the exercise of power in a review is also limited to correction of a mistake and not to substitute a view taken in a judgment, leave apart an application seeking to overturn a judgment of conviction into acquittal. Section 362 of CrPC provides that no court shall alter or review a judgment signed except to correct a clerical or arithmetical order. The Supreme Court Rules further make it abundantly clear. In my view, this application shows how the resourceful tend to play with justice. Gopal Ansal today stands as a convict. He is rich, he is guilty and after taking the victims through immense mental trauma for almost 20 years, he now claims to be old and ill!Having full confidence in judiciary, let us hope the application will be dealt with in accordance with law.

Namit Saxena is a Lawyer practicing in the Supreme Court of India.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]