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1996 JLJ 702
(SUPREME COURT)
A.M. Ahmadi, C.J.I. and S.B. Majmudar, J.
Keshub Mahindra v. State of M.P.
Cr. Appeal No. 1672 of 1996; against the order of M.P. High Court passed in
Criminal Revn.; Decided on 13.9.1996.
(2) Criminal P.C., 1973 -- S. 482 -- charge when may be quashed under inherent powers -- case should be rarest of rare cases. JT SC 1996 (2) 488 relied on. [Para 11
(3) Penal Code, 1860 -- Ss. 304 Pt. II and 299 -- Bhopal gas tragedy -- offence of culpable homicide even prima facie not made out.
It cannot be disputed that mere act of running a plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in tank No. 610 could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause death of human beings. In fairness to prosecution it was not suggested and could not be suggested that the accused had an intention to kill any human being while operating the plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being. AIR 1927 Cal. 324 approved. [Para 27
(4) Penal Code, 1860 -- Ss. 324, 326, 321 and 322 -- Bhopal gas tragedy -- persons responsible for running factory -- cannot be charged for offences under Ss. 324 and 326. [Para 29
(5) Penal Code, 1860 -- Ss. 429 and 425 -- Bhopal gas tragedy -- persons running factory -- cannot he charged for offence under S. 429 -- they cannot be said to have knowledge of causing wrongful loss or damage by that act. [Para 29
(6) Penal Code, 1860 -- Ss. 304A and 35 -- Bhopal gas tragedy -- thousands of people died and other suffered grievously -- prima facie offence under S. 304A made out -- persons who were not present but responsible for running factory may be charged for offence under S. 304A r/w S.35.
It cannot be said that the said material even prima facie did not point out the culpability of the concerned accused in running a defective plant having number of operational defects and in being prima facie guilty of illegal omissions to take safety measures in running such a limping plant on that fateful night which resulted into this colossal tragedy. The aforesaid conclusion of ours, therefore, would make out a prima facie case against accused Nos. 5,6, 7, 8 and 9 who were in actual charge of running of the Bhopal plant and would require them to face the trial for charge under section 304-A of the IPC.
So far as the remaining accused Nos. 2, 3, 4 and 12 are concerned the material produced on record clearly indicates at least prima facie that they being at the helm of affairs have to face this charge for the alleged negligence and rashness of their subordinates who actually operated the plant on that fateful night at Bhopal and for that purpose section 35 of the IPC would also prima facie get attracted against them. [Paras 34 & 35
(7) Penal Code, 1860 -- Ss. 336, 337, 338 and 35 -- Bhopal gas tragedy -- besides death thousands suffered grievous and simple injuries -- human lives also endangered -- charges under Ss. 336, 337 or 338 as the case may be framed with aid of S. 35 or without its aid -- matter to be decided after hearing. [Paras 37 & 38
¼1½ naM izfØ;k lafgrk] 1973 && /kkjk 227 rFkk 228 && vkjksi fojfpr fd, tkus dk izØe && U;k;ky; }kjk vfHkys[kxr lkexzh rFkk nLrkostksa dk ewY;kadu muds izR;{k ewY; ij djuk visf{kr gS && izFken`"V~;k ;g vfHkfuf‘pr djus ds fy, fd D;k muls vfHkdfFkr vijk/k xfBr gksrk gSA , vkb vkj 1990 ,l lh 1962 voyafcrA ¿ iSjk 10 ¼2½ naM izfØ;k lafgrk] 1973 && /kkjk 482 && vkjksi] varfuZfgr ‘kfDr;ksa ds v/khu dc vfHk[kafMr fd;k tk ldrk gS && ekeyk fojy ekeyksa esa fojyre gksuk pkfg,A ts Vh 1996 ¼2½ ,l lh 488 voyafcrA ¿ iSjk 11 ¼3½ naM lafgrk] 1860 && /kkjk 304 Hkkx 2 rFkk 299 && Hkksiky xSl =klnh && vkijkf/kd ekuo o/k dk vijk/k izFken`"V~;k Hkh fl) ughaA bl ij fookn ugha fd;k tk ldrk fd izkf/kdkfj;ksa dh vuqKk ds vuqlkj fdlh la;a= dk lapkyu ek= dksbZ vkijkf/kd dk;Z ugha gksxkA ;g eku dj Hkh ;g la;a= =qfViw.kZ Fkk vkSj blesa fed&ljh[kk vfr fo"kSyk rFkk ifjladVe; inkFkZ iz;qDr gks jgk Fkk] vfHk;qDrx.k }kjk VSad Ø- 610 esa ,sls inkFkZ dks HkaMkj.k ek= ls izFken`"V~;k Hkh ;g lq>k;k ugha tk ldrk fd rn~}kjk lacaf/kr vfHk;qDrx.k dks ;g Kku Fkk fd mlls ekuoksa dh e`R;q dh laHkkouk FkhA vfHk;kstu ds izfr _tqrk esa] ;g lq>ko ugha fn;k x;k vkSj fn;k Hkh ugha tk ldrk Fkk fd la;a= ds ifjpkyu djus esa vfHk;qDr dk fdlh ekuo dh gR;k dk vk‘k; FkkA mlh izdkj] iwoksZDr vfHkys[kxr lkexzh ij ls vfHk;kstu }kjk ;g lq>ko izFken`"V~;k Hkh ugha fn;k tk ldrk Fkk fd vfHk;qDrx.k esa ls fdlh dks Hkh ;g Kku Fkk fd la;a= ds tgk¡ fed&ljh[kk [krjukd vkSj vfr ok"i‘khy inkFkZ HkaMkfjr Fkk] ml HkforO;rkiw.kZ jkf= ds ifjpkyu ds dk;Z ls gh fdlh ekuo dh e`R;q dh laHkkouk FkhA , vkb vkj 1927 dydÙkk 324 vuqeksfnrA ¿ iSjk 27 ¼4½ naM lafgrk] 1860 && /kkjk 324] 326] 321 rFkk 322 && Hkksiky xSl =klnh && dkj[kkuk lapkfyr djus ds fy, mÙkjnk;h O;fDr && /kkjk 324 rFkk 326 ds v/khu vijk/kksa ds fy, vkjksfir ugha fd, tk ldrsA ¿ iSjk 29 ¼5½ naM lafgrk] 1860 && /kkjk 429 rFkk 425 && Hkksiky xSl =klnh && dkj[kkuk lapkfyr djus okys O;fDr && /kkjk 429 ds v/khu vijk/k ds fy, vkjksifr ugha fd, tk ldrs && mudks ml dk;Z }kjk nks"kiw.kZ gkfu vFkok uqdlkuh dk Kku gksuk ugha dgk tk ldrkA ¿ iSjk 29 ¼6½ naM lafgrk] 1860 && /kkjk 304d rFkk 35 && Hkksiky xSl =klnh && gtkjksa O;fDr e`r rFkk vU; dks xaHkhj d"V && izFken`"V~;k /kkjk 304d ds v/khu vijk/k fl) && O;fDr tks mifLFkr ugha Fks fdarq dkj[kkuk lapkfyr djus ds fy, mÙkjnk;h Fks] /kkjk 35 ds lkFk ifBr /kkjk 304d ds v/khu vijk/k ds fy, vkjksfir fd, tk ldrs gSaA ;g ugha dgk tk ldrk fd ifjpkyu laca/kh vuds =qfV;ksa okys =qfViw.kZ la;a= lapkfyr djus esa vkSj ml HkforO;rkiw.kZ jkf= esa ,sls ‘yFk la;a= dk lapkyu djus esa lqj[kk mik; djus esa voS/k yksi ds izFken`"V~;k nks"kh gksus esa tks bl c`gnkdkj =klnh esa ifj.kkfer gqvk] lacaf/kr vfHk;qDr dh vkijkf/kdrk mDr lkexzh ls izFken`"V~;k Hkh minf‘kZr ugha FkhA blfy,] gekjs iwoksZDr fu"d"kZ ls vfHk;qDrx.k Ø- 5] 6] 7] 8 rFkk 9 ds fo:)] tks Hkksiky la;a= ds lapkyu ds fy, oLrqr% izHkkjh Fks] izFken`"V~;k ekeyk fl) gS vkSj Hkk-na-la- dh /kkjk 304d ds v/khu vkjksi ds fy, mudk fopkj.k visf{kr gSA tgk¡ rd ‘ks"k vfHk;qDrx.k Ø- 2] 3] 4 rFkk 12 dk laca/k gS] vfHkys[k ij izLrqr lkexzh ls de&ls&de izFken`"V~;k ;g Li"Vr% minf‘kZr gS fd ekeyksa ds d.kZ/kkj gksus ds ukrs] vius v/khuLFkksa dh vfHkdfFkr mis{kk vkSj mrkoysiu ds fy, tks Hkksiky esa ml HkforO;rkiw.kZ jkf= dks og la;a= oLrqr% lapkfyr dj jgs Fks] bl vkjksi dk lkeuk djuk gksxk vkSj ml iz;kstuk ds fy, Hkk-na-la- dh /kkjk 35 Hkh muds fo:) vkdf"kZr gksxhA ¿ iSjk 34 rFkk 35 ¼7½ naM lafgrk] 1860 && /kkjk 336] 337] 338 rFkk 35 && Hkksiky xSl =klnh && e`R;q ds vfrfjDr] gtkjksa dks xaHkhj rFkk lknk {kfr;k¡ && ekuo thou ij Hkh ladV && /kkjk 35 dh lgk;rk vFkok fcuk lgk;rk ds /kkjk 336] 337 vFkok 338 ds v/khu] tSlk Hkh ekeyk gks] vkjksi fojfpr fd, tk ldrs gSa && ekeyk lquokbZ ds i‘pkr~ fofuf‘pr fd;k tkuk gksxkA ¿ iSjk 37 rFkk 38
S.B. Majmudar, J. -- 1. Leave granted in all these Special Leave Petitions.
2. In these appeals the concerned appellant-accused have brought in challenge the order dated 8th April 1993 passed by the Court of 9th Additional Sessions Judge, Bhopal in Sessions Trial No. 257 of 1992 whereby the learned Sessions Judge framed charges against the appellants in appeals - arising out of S.L.P. (Crl.) Nos. 3900 of 1995, 3901 of 1995 and 3953 of 1995 under sections 304 Part II, 326, 324 and 429 read with section 35 of the Indian Penal Code (for short 'IPC') and framed charges under sections 304 Part II, 326, 324 and 309 against the appellants in appeal arising out of S.L.P. (Crl.) No. 3932 of 1995. They had also challenged the orders of the High Court of Madhya Pradesh at Jabalpur in Criminal Revision Application Nos. 237/93, 238/93, 312/93 and 311/93 whereby these charges were sustained. Appeal arising out of S.L.P. (Crl.) No. 3900 of 1995 is moved by Shri Keshub Mahindra who is accused No.2 before the Sessions Court. Appeal arising out of S.L.P. (Crl.) No. 3901 of 1995 is moved by Shri V.P. Gokhale who is accused No.3 in the same case. Appeal arising out of S.L.P. (Crl.) No. 3953 of 1995 is moved by Kishore Kamdar who is accused No.4 in the said case while the last appeal arising out of S.L.P. (Crl.) No. 3932 of 1995 is moved by six accused being Shri J. Mukund accused No.5, Dr. R.B. Roy Choudhary accused No.6, Shri S.P. Chaudhary accused No.7, Shn K.V. Shetty accused No.8, Shri S.I. Qureshi accused No.9 and Union Carbide India Limited ('UCIL' for short) accused No. 12 in the same case pending before the Sessions Court at Bhopal. The concerned appellants had moved the High Court of Madhya Pradesh at Jabalpur under sections 397 and 482 of the Code of Criminal Procedure (CrPC) for quashing the aforesaid charges.
3. With a view to highlighting the grievances of the appellants a few relevant facts deserve to be noted at the outset.
Introductory Facts
4. A grim tragedy of unprecedented nature occurred at Bhopal on the night intervening 2nd December 1984 and 3rd December 1984 wherein between 0030 hours and 0045 hours a highly dangerous and toxic gas called MIC escaped from tank No. E610 from the Bhopal factory belonging to accused No. 12 UCIL. As a result of this leakage 3828 human beings lost their lives while permanent injuries were caused to 18922 human beings, temporary disablement was suffered by 7172 human beings, temporary disablement caused by permanent injury was suffered by 1313 persons while permanent partial disablement was suffered by 2680 persons. While 40 human beings suffered from permanent total disablement and the death toll of animals amounted to 2544. This ghastly tragedy has come to be known as 'Bhopal Gas Tragedy'. After the gas leakage Crime Case No. 1104 of 1984 was registered at the Police Station Hanumanganj, Bhopal on 3rd December 1984 by the Station House Officer suo motu. This case was registered under section 304-A, IPC. In the said case 12 accused were indicted. Accused No. 1 was Shri Warren Anderson who was the Chairman of Union Carbide Corporation. The said concern was also indicted as accused No. 10. Accused No.2 Keshub Mahindra was the Chairman of UCIL which in its turn was shown as accused No. 12. Accused No. 3 V.P. Gokhale was shown as an accused in his capacity as Managing Director of UCIL. Kishore Kamdar who was the Vice President and Incharge of A.P. Division of UCIL was shown as accused No.4. Shri J. Mukund the Works Manager of the Bhopal Plant was joined as accused No.5. Dr. R.B. Roy Choudhary who was Assistant Works Manager, A.P. Division, UCIL at Bhopal was joined as accused No.6. Accused No.7 was Shri S.P. Choudhary, Production Manager of the Bhopal Plant. Shri K.V. Shetty, Plant Superintendent of the said Bhopal plant was accused No.8. Shri S.I. Qureshi was shown as accused No.9. He was Production Assistant at the said Bhopal plant. Out of the above accused persons accused Nos. 5, 6, 7, 8 and
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