Point of Law:
there is a fine distinction between section 304 and section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of section 299 or culpable homicide amounting to murder under section 300 IPC. In other words, section 304A excludes all the ingredients of section 299 as also of section 300. Where intention or knowledge is the ‘motivating force’ of the act complained of, section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death.

ORDER :

In recent times, we have heard of several instances of industrial disasters arising out of leakages from factories/industrial plants involved in chemicals/fertilizers and other toxic substances. The Bhopal disaster, also referred to as the Bhopal gas tragedy, was a gas leak incident that took place on the night of 2 – 3 December 1984. It shakes the human conscience since the after-shocks could be seen even today, if one visits Bhopal. Very recently, i.e. in May 2020, an industrial accident occurred at L.G. Polymers chemical plant situated at Visakhapatnam, Andhra Pradesh. The gas speedily spread in the places surrounding the chemical plant. Footage of people on the streets, collapsing on account of being unable to bear the gas and its pungent smell, is known to all.

1. The case on hand also relates to an industrial accident that occurred at “Yashasvi Rasayan Pvt. Ltd.” (hereinafter referred to as “the Company”) situated at Village Lakhi, Taluka Vagra, District Bharch, in which around 10 persons died and more than 75 sustained injuries. All the dead were workers/employees of the Company. Since all these applications involve common questions on law and facts and arise out of the same first information report, they are decided by this common order.

2. The applicants herein have prayed to release them on anticipatory bail in connection with the impugned complaint being FIR No.11199035200119 of 2020 registered with Dahej Marine Police Station, District Bharuch for the offences punishable under sections 304, 337, 338, 203, 285, 286, 287, 427 and 114 of IPC.

3. Mr. Sudhir Nanavaty, learned Senior Advocate appearing for the applicants in all these matters, submitted that the alleged incident took place on 03.06.2020 at around 1200 hrs. on account of a blast caused by a chemical reaction in the factory premises of the Company, which act could not be attributed to the applicants herein. It was submitted that the applicants are employees of the Company and are working as employees/officers in the Company.

3.1 Referring to the allegations made in the impugned complaint, it was submitted by the learned Senior Advocate appearing on behalf of the applicants that the applicants could not be alleged to have committed the offence under section 304 IPC. It was submitted that while unloading two different chemicals, viz. Dimethyl Sulphate (DMS) and Nitric Acid (NC), from the respective tankers to the respective storage chambers, on account of a bona fide human error, the hose-pipes of the two tankers, in which the said two chemicals were brought to the factory premises at the relevant time, got inter-changed and the two chemicals were transferred to the wrong storage chambers. In other words, the storage chamber containing DMS was connected with the hose-pipe of the tanker containing NA and the storage chamber containing NA was connected with the hose-pipe of the tanker containing DMS, which led to a chemical reaction in the storage chamber containing NA and ultimately, led to the blast.

3.2 Learned Senior Advocate placed reliance upon the decision of the Apex Court in the case of Keshub Mahindra v. State of M.P. reported in 1996 (6) SCC 250 wherein it has been held that that the material on record does not prima facie suggest that the applicants had the knowledge that such dangerous and highly volatile substance had been stored in the storage chambers and that they had the knowledge that the alleged act of negligence was likely to cause death of any human being. It was submitted that there is no material on record to show that the applicants herein are guilty of committing the offence of culpable homicide inasmuch as the applicants had not done any act, which had caused death or that the applicants had the knowledge that their act would cause death. It was contended that the averments made in the impugned complaint no where attracts the elements of culpable homicide. It was, accordingly, urged that discretion may be exercised in their favour b