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6. Learned Trial Judge vide orders dated 27.2.2001 ordered framing of charges against the petitioner Sh. Sushil Ansal holding that prima facie case under Sections 304-A, 337 read with Section 36 IPC as well as Section 14 of Cinematograph Act, 1952 was made out against him. It was held that a charge under Section 304 read with Section 36 IPC existed against the petitioner Sh. N.S. Chopra. Learned trial Judge held that the transformer in question was installed during the tenure of and on the request of the petitioner Sh. Sushil Ansal and certain deviations were also made in the building as well as seating arrangements in the balcony during his tenure. According to learned trial Judge, installation of the transformer, which had caught fire and non-adherence of the rules and regulations made out a prima facie case against him. Regarding petitioner Sh. N.S. Chopra, learned trial Judge held that not only that he was responsible for various deviations and violation of the rules, he was present also at the spot at the time of the incident but had failed to provide any help to the persons trapped in the balcony having knowledge that his acts of omission and commission were likely to cause death or injuries to persons trapped in the balcony.

(b) That the cinema was always run by its management with the permission and under license from the authorities concerned and even on the date of the incident, there was a valid license with the cinema owners under the Cinematograph Act, 1952. There was no violation of Rules or Bye-laws and every step was with the permission of authorities concerned. If the license was being renewed inspite of minor deviations in the building or in the seating arrangements in the balcony, the cinema management as well as the petitioner cannot be blamed. It is also argued that the management of Uphaar Cinema or the petitioner or for that purpose no prudent man could ever assume that minor deviations and violations of rules and regulations would result in such a tragic incident.

15. He also submits that to bring a person within the four corners of Section 304-A IPC, negligence or carelessness on his part has to be of "gross character". He argues that running of a cinema was neither an illegal nor per-se a rash or negligent act. It was being run under a valid license, which was being renewed by the Authorities every year after carrying out inspections to ensure substantial compliance of rules and regulations. The management of the cinema or for that purpose no prudent man could even imagine that the Delhi Vidyut Board transformer installed in a separate room on the ground floor could lead to such a disaster. It is submitted that neither the petitioner nor anybody else in the management of the cinema had and duty or authority to oversee the maintenance of Delhi Vidyut Board transformer and had to rely solely upon the skill and expertise of DVB employees. It is also submitted that minor deviations or violations of the building bye-laws or Cinematograph Act and rules there under would not be sufficient to impose criminal liability upon the management of the cinema or the petitioner as mere failure to exercise little care here or there or slight failure in duty or minor deviation from a prudent conduct are not sufficient for fastening criminal liability. According to him the conduct of an accused has to be shown in utter, flagrant and wanton disregard for the safety of others, who might reasonably be expected to the injured thereby. Therefore, the negligence has to be gross in character showing complete indifference, wantoness or recklessness. He also submits that every violation of a statute does not constitute criminal negligence. Unintentional violation of a prohibitory statute or regulation unaccompanied by recklessness towards probable consequence of a dangerous nature can not constitute criminal responsibility.

30. Shri Ram Jethmalani, Senior Advocate has further argued that Shri Sushil Ansal, the petitioner, was in no way concerned or connected with the company which was running the cinema and as such no charge ought to have been framed against him. He argues that the petitioner was the Director of the Company, owning the cinema up to 17th October, 1988 only, and thereafter he was never connected or concerned with the running of the Cinema in any capacity whatsoever. According to him the mere fact that the petitioner was a member of the family having shareholding in the company which was running this cinema or that he was attending certain meetings as a special invitee was not enough to initiate criminal proceedings against him. On the other hand Shri Harish Salve, Solicitor General of India and Shri K.T.S. Tulsi, Sr. Advocate appearing on behalf of Association of Victims of Uphaar Tragedy have contended that the prosecution has sufficient material to show, prima facie, that the petitioner Shri Sushil Ansal had not only got the transformer in question installed at a place within the building which was hazardous for the safety of the visitors to the cinema but during his tenure itself numerous deviations were carried out in the building as well as sitting plan in the balcony which cumulatively resulted in loss of human life and injuries to a large number. According to them he was also one of those who were responsible for creating a death trap in which innocent patrons watching a movie got entrapped and lost their lives. They submit that although the petitioner Sh. Sushil Ansal was not the Director of the Company at the time of occurrence but still the evidence available on record shows that he was the person primarily involved in the running and up keep of the cinema and was regularly visiting the cinema for looking after its management. He was not only participating in the meetings of the Board of Directors but was also issuing instructions to the cinema staff from time to time who used to call him 'MAALIK'. It is argued that in such cases the corporate veil has to be lifted to find out as to who in reality was responsible for running the show. Relying upon a judgment of the Apex Court in D.D.A. v. Skipper Construction Co. (P) Ltd. , it is submitted that in the present case, as soon as the corporate veil is lifted it becomes clear that petitioner Sh. Sushil Ansal, was, in fact, controlling and running the cinema in question up to the date of incident and most of the hazardous acts and omissions were committed during the period he was the Director of the Company. In Apex Court judgment referred to above, their lordships discussed the concept of peeping behind the corporate veil and came to the conclusion that where corporate character is employed for the purpose of committing some illegality or for defrauding others the Court would ignore the corporate character and will look at the reality behind the corporate veil so as to enable it to pass appropriate orders to do justice between the parties concerned. Para 28 of the said judgment can be quoted with advantage: