At 80 years of age, former Haryana Chief Minister Om Prakash Chautala did not get a reprieve from the Supreme Court when in August this year it dismissed a clutch of applications seeking relief for him in the Teachers Recruitment Scam case. He continues to languish in jail serving his 10-year-term. Subrata Roy, the founder and chairman of Sahara India, at 67 years of age, has been in jail in an economic offences case since April 2014 and has failed to secure any relief on account of his age or health from the apex court.
However, in its order of September 22 a Supreme Court bench comprising Justices Anil R. Dave, K. Joseph and Adarsh Kumar Goel, took a very different view of things in the Uphaar cinema fire case when they allowed the Ansal brothers – Sushil and Gopal – to walk away with nearly five-month sentences each already served, instead of the two-year term in the Uphaar fire tragedy case, provided they paid Rs 30 crore each for setting up of a trauma centre in New Delhi.
The order, written by Justice Dave, providing the reasons for the operative part of the order passed earlier on August 19, said “I take note of the fact that since Sushil Ansal is now more than 74 years old and was running the theatre business essentially along with his brother Appellant No. 2 Gopal Ansal, I consider that the period of enhanced sentence in these appeals imposed on the Appellants Sushil Ansal and Gopal Ansal may be substituted with substantial amount of fine…..”
While granting relief to Sushil Ansal on account of his age, the Judge wrote that the sentence of Gopal Ansal, who is still in his 60s, be also reduced “on the principle of parity”. The order said both the appellants had already undergone a substantial part of the one-year sentence awarded to them and were willing to pay substantial amount towards fine in lieu of the remaining period of sentence.
Incidentally, while giving reasons for the reduction in period of terms, the order also stated that “it hardly needs to be mentioned that an appropriate sentence has to be awarded by taking into consideration the gravity of offence, the manner of commission, the age of the accused and other mitigating and aggravating circumstances. The sentence should neither be excessively harsh nor ridiculously low.”
It said the judges “are of the considered opinion that ends of justice would meet if the appellants are directed to pay fine so that the amount of fine can be used either for the purpose of setting up a Trauma Centre in NCT of Delhi or for upgrading Trauma Centres of Hospitals managed in NCT of Delhi by the Government of Delhi.”
The order also pointed out that another convicted person, Harsarup Panwar, has already paid Rs.10 lakh as per operative order pronounced on August 19 so that he did not have to serve the remaining sentence.
The order has come in for severe criticism from the Association of the Victims of Uphaar tragedy. Its convener Neelam Krishnamoorthy said the court had observed that it was taking into consideration the gravity of the offence. “The fact is the tragedy killed 59, including 23 children, the youngest being a month old. The convicted are being allowed to walk free because they are too old to go behind bars, but were not these victims too young to die.”
Greed for profits
Further, she said while the court has spoken about the “manner of commission” of offence, not much weightage was given to the fact that “this offence was committed only for greed to increase the profits.”
“Justice T.S. Thakur of Delhi High Court had attributed it to “making a little extra money’. My contention is why should our children pay with their lives because the accused wanted to make extra money for their grand children,” she argued.
Coming to the most important issue of the “age of the accused’’, Krishnamoorthy said while the Juvenile Justice Act clearly provides that the age in respect of a crime would be determined on the basis of the day it was committed, in the case of the Ansal brothers, “the judges are seeing the age today, not when they committed the crime.”
“Sushil Ansal was in his 50s and Gopal in his 40s, when the Uphaar tragedy took place. They have deliberately delayed the trial to benefit from this clause. AVUT went to High Court three times – in 2000, 2002 and 2007 – seeking expeditious trial. They were never interested, so why should they get the benefit,” asked Krishnamoorthy, who lost both her teenaged children in the fire tragedy.
Even when it came to the “mitigating and aggravating circumstances”, Neelam Krishnamoorthy said these too have not been considered judiciously. “In the case of Nitish Katara while awarding the sentence they saw the conduct of the accused and increased the sentence. But in Uphaar case they have not seen the conduct. An FIR was lodged against the Ansal brothers for tampering with the evidence on the directions of the High Court. A trial is going on in the sessions court. But this was not considered.”
As for the court’s observation that “the sentence should neither be excessively harsh nor ridiculously low”, it has been argued that four months and 20 days and five months and 20 days respectively is the quantum of term the two prime accused have undergone. “Isn’t this ridiculously low. Gopal was never arrested. Initially he was on the run. It was only when AVUT moved the Supreme Court for cancellation of bail of Ansal brothers for tampering with the judicial records that the apex court cancelled their bail and they were sent behind bars.” Again, she claimed, the reasoning got lost somewhere.