Ansal Theatres And Clubotels Pvt. ... vs State And Anr.
2003 Latest Caselaw 1003 Del

JUDGMENT

J.D. Kapoor, J.

1. Petitioners are owners of Uphaar Cinema which witnessed dance of death on 13.6.1997 when hundreds of people who had gone to see first show of the movie released on that day were trapped inside as the fire broke out and smoke emitted by it was sucked in through A.C ducts. Large number of people were choked to death while several received injuries. The doors were so locked that the people inside could not find their way out though they started running helter and skelter to save their lives. As many as 59 lives were lost due to asphyxia and many were injured as the gangways and exits remained closed. Balcony turned into a gas chamber. The fateful day turned out to be baneful day. City's eyes were suffused with tears. Whole world felt aghasty the heart-rending scenes of horrified citizens, victims' kiths and kins, near and dear ones.

2. It was one of the worst man made tragedies. Investigation revealed gross violation of Electricity rules, Cinematograph Act, Building Bye-laws, absence of gangways, absence of adequate facility of the exit from balcony, absence of second staircase and absence of any help from staff on duty. Greed and corruption proved to be the deadly monsters.

3. Friends and relatives of victims of scene of macabre organized themselves to see that the culprits are brought to justice and families of victims get compensation. They formed an Association and named it Association of Victims of Uphaar Tragedy (in short ''AVUT''). By way of writ filed by AVUT, the petitioner-owners of the Cinema were ordered to pay Rs.18 crores as compensation to the families of dead and to the surviving victims. During investigation, cinema complex was sealed and put under the supervision of CBI in order to preserve the scene of offence. More than six years have passed, the trial is still going on and the premises are lying sealed. However, more than 108 witnesses have been examined out of long list of witnesses.

4. Petitioners moved an application before the trial court for release of the cinema which according to them is neither the case property nor the complex which was seized by the investigating agency as such nor is it required for any purpose whatsoever as all the necessary investigation had been carried out and completed. According to them the cinema complex has been put to such a disuse that it has now come to ruinous stage for want of maintenance, repairs and decay on account of vagaries of nature anobody is allowed to enter into. Petitioners have been virtually dispossessed from their property. In addition they now want to sell it to discharge part of their liability towards compensation they have been ordered to pay. Apart from this, prosecution has already exhausted long line of witnesses and no prejudice will be caused to the prosecution if the cinema is released to them.

5. Vide impugned order dated 27.1.2003 the application was dismissed by the learned trial court impliedly on the ground that the complex was required to be preserved for the purpose of appreciating the evidence. This petition seeks setting aside the said order.

6. The cause of the petitioners was advanced by Mr. Ram Jethmalani, learned senior counsel appearing for them mainly on the following premises:-

(i)Though the property was not seized by the investigating agency as a case property still the provisions of section 457 Cr.P.C relating to disposal of property seized by the police can be extended to the property in question as by the act of CBI the property has virtually been seized by them;

(ii)That there is no justification for preserving the property in question as whatsoever was to be preserved as evidence has already been preserved by the Investigating Agency in the form of video of the scene of occurrence, inspections by the Executive Engineer and other concerned authorities namely D.C.P.(Licensing) and an Electricity Inspector and therefore no useful purpose will be served by preserving it further as it has already been ruined by disuse and non-repairing as for six long years it has remained unattended. Following evidence collected by the Investigating Agency is sufficient and capable of proper appreciation of evidence and therefore no prejudice will be caused to the case of the prosecution if the complex is released to the petitioners:

''Inspection reports by Mr. R.K. Bhattacharya, Executive Engineer, MCD

Inspection report of Court Commissioners

Inspection report of Mr. R.N. Gupta, Executive Engineer, MCD(D-83) with eight plans

Inspection report by Executive Engineer, PWD (D76)

Joint Inspection Report dated 7.10.1997 (DCP Licensing)

DFS Report dated 16.6.1997

CFSL reports D-105 and D-109

Report of Mr. K.V. Singh and Prof. M.L. Kothari D-112

D-9(Seven Plans)

Reports of Mr. K.L. Grover, Electricity Inspector, Delhi.

The cinema building was photographed and videotaped by various agencies-

34 photographs Along with their negatives pertaining to scene of crime (Uphaar Cinema taken by Photographer of Traffic Unit, PHQ, after the fire incident dated 13.6.98.

One video cassette of Uphaar Cinema fire tragedy recorded on 6.7.97 by Delhi Police.

One video cassette got recorded by CBI during investigation of the scene of crime.''

(iii)That there is no finding by the trial court that a visit to the scene of occurrence or local inspection of the same is necessary for the purpose of appreciating the evidence.

7. Mr. Jethmalani has strongly urged for release of the Cinema Complex firstly for the purpose of discharging petitioners' liability towards victims and secondly to save it from disuse and ruining and being reduced to a dilapidated structure and thirdly for the futility of preserving it for uncertain period allegedly for the purpose of appreciation of evidence whereas the evidence can be appreciated effectively on the basis of the above referred material.

8. On the contrary, Mr. K.T.S. Tulsi, learned senior counsel appearing for AVUT has vehemently opposed the release of the Cinema Complex mainly on the ground that unless and until the learned trial court inspects the premises for the purpose of properly appreciating the evidence, the scene of offence has to be preserved and the proper stage is when the evidence including defense evidence is concluded. Learned Addl. Solicitor General appearing for CBI has also resisted the application by adopting the same line of argument as advanced by Mr. Tulsi.

9. At the outset, it may be stated that the property referred in section 457 Cr.P.C is ordinarily a movable property and this is apparent from the provisions itself which read as under:-

''457. Procedure by police upon seizure of property:-

(1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2)If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.''

10. The very words that ''if the property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof'', leave no manner of doubt that the property referred in these provisions is ordinarily the property which is capable of being produced before the criminal court and is liable to be disposed of by way of delivery to the per on entitled to the possession thereof. Even if we may assume that the word `property' in this context includes immovable property also but such a property should necessarily be a subject of ''seizure'' as a case property and not a property which is preserved solely for the purpose of inspection for appreciation of evidence.

11. Since the property in question was sealed with the object to preserve it for the purpose of appreciating the evidence as envisaged under Section 310 Cr.P.C, legal and symbolic possession still continues with the petitioners being owners thereof though in actuality they have been dispossessed temporarily because of the preservation of the same. Thus provisions of Section 457 Cr.P.C are not invokeable in the instant case.

12. In view of the peculiar facts and circumstances of the case and the rival contentions being directed against the point as to the stage of trial when court should inspect the scene of offence, I deem it needless to refer to the various authorities cited by Mr. Jethmalani and Mr. Tulsi as the controversy can be determined on factual matrix alone.

13. Section 310 Cr.P.C is the only provision that is attracted or applicable for the purpose of deciding the application of the petitioners. It reads as under:-

''''Local inspection:- (1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.

(2)Such memorandum shall form part of the record of the case and if the prosecutor, complainant or accused or any other party to the case, so desires, a copy of the memorandum shall be furnished to him free of cost.''

14. As is apparent Section 310 Cr.P.C vests the discretion solely in the trial court to consider as to at which stage of an inquiry or trial or other proceedings it shall visit any place where offence is alleged to have been committed or any other place which in its opinion is necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial. The words ''at any stage'' are of wide amplitude.

15. Section 310 Cr.P.C requires a finding that a visit to the scene of offence or what is called local inspection is necessary for the purpose of appreciating the evidence as preserving the scene of offence and appreciating evidence are two different concepts. Hundreds of cases arise every day and if the scene of occurrence in each case is to be preserved then normal life will come to a standstill. Mr. Jethmalani contends that a judgment of a Court speaks by itself on words and language but from the instant order it is difficult to speculate what the Judge had in mind. He also contends that what is to be preserved is the evidence of the topography of the place but not the place itself. What is to be preserved is the evidence of what had taken place at the scene of occurrence and not the scene of occurrence itself. I agree with Mr. Ram Jethmalani that the learned trial court was expected to spell out the stage when it would consider proper to inspect words ''the scene of offence should be preserved or appreciation of evidence'' impliedly means that the court intends to inspect the premises for appreciation of evidence.

16. Since the main purpose of local inspection is for properly appreciating evidence, ordinarily the proper stage may be stage after the conclusion of the entire evidence including the defense evidence as it may not be proper for the trial court in cases like the one in question to intermittently inspect the premises after the examination of few witnesses and go on inspecting the scene of occurrence as and when discrepancy surfaces in the testimony of witnesses. This is why the courts have been advise to visit and inspect place of offence after entire evidence has been produced by both the parties so that single composite report is prepared by the trial court.

17. However there is no restriction as to the power of inspection by the court at any particular stage that is either at the beginning of the trial or in the midst or even after the closure of the evidence or after the evidence of defense, as is apparent from the words ''at any stage''.

18. If the trial court considers in the midstream of evidence in order to appreciate the evidence when any glaring contradiction comes in the cross-examination of the witnesses or there is glaring variance between the prosecution and defense version as to the topography or situational aspect of a premises which is a scene of offence, it may inspect the premises. But inspection of the scene of offence piecemeal is neither proper nor advisable for appreciating the evidence. Ordinarily ''evidence'' means evidence in entirety particularly when defense evidence is also proposed to be adduced to challenge or controvert the prosecution evidence as to relevant details of the scene of offence.

19. Be that as it may, it is solely within the discretion of the trial court to decide as to at what stage it would be necessary to visit and inspect the place of offence or any other place which in its opinion is necessary to view for the purpose of properly appreciating the evidence yet discretion is to be exercised depending upon the facts and circumstances of each case.

20. Orissa High Court in Sanapalla Kamayya Vs. Bamidi Rajanna 1989 (3) Crimes 698 has taken a view that usually a local inspection is done after the evidence is closed and if the Court feels that for the purpose of appreciation of the evidence an to know the exact topography etc., the local inspection may be necessary, the court may carry out the same.

21. It is pertinent to mention that whenever any building or for that purpose any immovable property is seized for the purpose of preserving the evidence for future local inspection by the trial court for the purpose of appreciating the evidence to be produced during trial, the endeavor of the trial court should always be to conclude the trial as expeditiously as possible so that local inspection is made as early as possible in order to avoid the property being ruined on account of non-user, non-maintenance and non-attendance.

22. However, in view of the fact that the trial is at its fag end and is being expedited being held on day to day basis, it would be in the fitness of things to wait for some more time so as to enable the trial court to inspect the scene of offence in one go for the purpose of properly appreciating evidence. This would be in the interests of both the parties else any prejudice is caused to either of them by way of its release as in that case everything including relevant and material pieces of evidence would wither away by doing away with its original condition. No useful purpose will be served if the Complex is released to the petitioner with the condition that they would keep it in the same condition and intact till the local inspection is carried out by the trial court for the purpose of appreciating the evidence. Such an order would be neither here nor there.

23. In order to put the controversy at rest once for all and taking overall view of the facts and circumstances under which heart-rending occurrence took place and the trial having reached near conclusion as it is proceeding on day to day basis and to avoid any prejudice of any kind to any of the parties as to the result of trial on account of release of the premises in question, I deem it proper to give the following directions to the learned trial court:-

'' Trial Court shall not only take the decision whether the local inspection of the scene of offence is required for the purpose of properly appreciating the evidence but also visit and inspect the same if it decides to do so within one month of conclusion of defense evidence and shall record memorandum of relevant facts observed at such inspection, copy of which will be given to the prosecutor, AVUT and the accused persons free of cost. Property in question shall be released to the petitioners after expiry of the aforesaid one month's time.''

24. With these directions, the petition is disposed of.