C.B.I. AND ORS.versusKESHUB MAHINDRA ETC. ETC.

                        [2Q11] 6 S.C.R. 384

A                         CJ3.I. AND ORS.
                                 v.
                  KESHUB MAHINDRA ETC. ETC.
             Curative Petition (Crl.) Nos.39-42 of 2010
                                  IN
B             (Criminal Appeal Nos.1672-75 of 1996)

                           MAY 11, 2011

         [S.H. KAPADIA, CJI, ALTAMAS KABIR, R.V.
     RAVEENDRAN, B. SUDERSHAN REDDY AND AFTAB
C                       ALAM, JJ.]

        Code of Criminal Procedure, 1973: ss.323 216, 386, 397,
   399, 401 - Jurisdiction of court to exercise power conferred
   under the Code - Scope of - The Supreme Court passed
D judgment on 13. 9. 1996 quashing the charges framed by the
   Sessions Court and directing that on the material led by
   prosecution the charge uls.304A, /PC be made out against
   accused - Curative petitions filed after 14 years of 1996
  judgment on the ground that the said judgment barred the
E Magistrate from exercising his judicial power u/s. 323 - Held:
   No decision by any court can be read in a manner as to nullify
   the express provisions of an Act or the Code - In the 1996
  judgment, the Supreme Court clearly held that its findings
   were based on materials gathered in investigation and brought
F before the court till that stage - At every place in the
  judgment, the Court recorded the finding in regard to the
  appropriate charges against the accused, it qualified the
  finding or observation by saying "on the materials produced
  by the prosecution for framing charge" - The 1996 judgment
G was rendered at the stage of ss.20912281240 and the judgment
  cannot be read to say that it denuded a competent court of
  the powers under ss.323, 216, 386, 397, 399, 401 etc. - The
   1996 judgment cannot be said to be a fetter against the proper
  exercise of powers by a court of competent jurisdiction under

H                              384
C.B.L AND ORS. v. KESHUB MAHINDRA ETC. ETC. 385


the relevant provisions of the Code - No grounds falling within A
the parameters of *Rupa Ashok Hurra case made out in the
instant curative petitions - Moreover, no satisfactory
explanation is given to file such curative petitions after about
14 years from 1996 judgment of the Supreme Court -
Curative petitions dismissed - Curative Petition.                B

     *Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388 -
relied on.

     Keshub Mahindra V. State of M.P. (1996) 6 sec 129 -
referred _to.                                                    C

                     Case Law Reference:
    (1996) 6 sec 129          referred to     Paras 1, 3
    (2002) 4 sec 388          relied on       Para 4             D
     CRIMINAL APPELLATE JURISDICTION: Curative Petition
(Criminal) Nos. 39-42 of 2010:

    In
                                                                 E
    Criminal Appeal Nos. 1672-1675 of 1996.

     Goolam E. Vahanvati, AG, Indira Jaising, H.P. Rayal and
Vivek K. Tankha, ASG, H.N. Salve, Amit Desai, Sidharth Luthra,
C.U. Singh and Ram Jethmalani, Devadatt Kamat, Anoopam
N. Prasad, Naila Jung, Nishanth Patil, Rohit Sharma, Sreekant    F
N. Terdal, T.A Khan, Ar\lind Kumar Sharma, Pianka Telang,
Nitin Lonkar Parmeshwar! Samridhi Sinha, Chinmoy Sharma,
Anriudh Sharma, Ananda Mukherjee, Harsh N. Parekh, Avi
Singh, Karuna Nandy, Ap'arna Bhat, Gopal Krishna Shenoy,
Mahesh Agarwal, Neeha Nagpal, E.C. Agrawala, Radhika             G
Gautam, Rishi Agrawala, O.P. Khaitan, Ramesh Singh, AT.
Patra, Ajay Gupta, Aradhana Patra (for O.P. Khaiatan & Co.),
Ramesh Singh, AT. Patra, S.U.K. Sagar, Bina Madhavan,
Vaibhav Gaggar, Anurag Ahluwalia, Krishna Kumar Singh,
Karan Kanwal, Mohinder Charak, Vinita Sasidharan, Praseena       H
    386           SUPREME COURT REPORTS              [2011] 6 S.C.R.


A E. Joseph (for Lawyers' Knit & Co.), Pratul Shandilya, Rishabh
  Sancheti, Sameer Sodhi Vaibhav Shrivastav, Kumanan D.,
  Varun Chopra, C.D. Singh, Sanjay Parikh, Aagney Sail, Mamta
  Saxena, Anitha Shenoy, Prashanto Chandra Sen, Yug Mohit
  Choudhary, Lata Krishnamurty, Nitin Dahiya, Pallav Kumar,
B Rishi Maheshwari and P.S. Sudheer for the appearing parties.

          The Order of the Court was delivered by

                                  ORDER

c      S.H. KAPADIA, CJI. 1. These curative petitions are filed
  by Central Bureau of Investigation for recalling the judgment and
  order dated 13.9.1996 of this Court in Keshub Mahindra vs.
  State of M.P. (Criminal Appeal Nos. 1672-1675 of 1996
  decided on 13.9.1996 reported in 1996 (6) sec 129), on the
D following premises :

           (i)     When this Court, by the said judgment dated
                   13.9.1996 quashed the charges framed against
                   accused Nos. 2 to 5, 7 to 9 and 12 under Sections
                   304 (Part II), 324, 326 and 429 IPC and directed
E                  the trial court to frame charges under Section 304A
                   IPC, this Court had before it adequate material to
                   make out prima facie, an offence chargeaole under
                   Section 304 (Part II) IPC. Therefore, this Court
                   committed a serious error in ignoring such material
F                  and quashing the charge under Section 304 (Part
                   II) IPC.

           (ii)    The evidence placed in support of the charge under
                   Section 304A IPC during the trial of the said
                   accused before the learned Chief Judicial
G
                   Magistrate, Bhopal showed prima facie that the
                   said accused had committed offences punishable
                   under Section 304 (Part II) IPC. But for the said
                   judgment of this Court dated 13.9.1996, the learned
                   Magistrate would have, by taking note of the said
H
 C.B.I. AND ORS. v. KESHUB MAHINDRA ETC. ETC. 387
               [S.H. KAPADIA, CJI.]
               material, committed the case to the Court of A
               Sessions under Section 323 of the Code of Criminal
               Procedure (for short 'the Code'). However, in view
              of categorical finding recorded by this Court, in its
              binding judgment dated 13.9.1996 that there was
              no material for a charge under Section 304 (Part II) B
               IPC and consequential quashing of the said charge,
              with a direction to frame the charge under Section
              304A IPC, the learned Magistrate was barred from
              exercising his judicial power under Section 323 of
              the Code, even though the Code vested the C
              jurisdiction in him to alter the charge or commit the
              case to the Court of Sessions as the case may be,
              on the basis of evidence that came on record
              during the trial.

      (iii)   The judgment dated 13.9.1996 therefore resulted in D
              perpetuation of irremediable injustice necessitating
              filing of the curative petitions seeking recall of the
              judgment dated 13.9.1996.

       2. On the night of December 02, 1984 there was a massive E
escape of lethal gas from the MIC storage tank at Bhopal plant
of the Union Carbide (I) Ltd. (UCIL) into the atmosphere causing
the death of 5,295 people leaving 5,68,292 people suffering
from different kinds of injuries ranging from permanent total
disablement to less serious injuries. On the day following the F
incident, the SHO, Hanuman Ganj Police Station, suo moto,
registered a Crime Case No. 1104 of 1984 under Section
304A IPC. On December 06, 1984 investigation was handed
over to the CBI, which investigation stood completed, resulting
in filing of charge sheets by the CBI in the Court of C.J.M., G
Bhopal on December 01, 1987. Since the charge sheets inter
alia alleged commission of offence under Sections 304, 324,
326, 429 read with Section 35 of IPC, the case was committed
by the C.J.M. to the Sessions Court as Sessions Case No. 237
of 1992 (See : Order dated 30th April, 1992). On 8th April,
                                                                  H
    388     SUPREME COURT REPORTS                [2011) 6 S.C.R.

A 1993, the 9th Additional Sessions Judge, Bhopal passed an
  order framing charges against the accused Nos. 5 to 9 under
  Sections 304 (Part II), 324, 326 and 429 of IPC and against
  accused Nos. 2, 3, 4 and 12 under the very same Sections but
  with the aid of Section 35 of IPC. It may be mentioned that at
B the time of framing of charge, the Court had before it, accused
  Nos. 2 to 9 and accused No. 12 (UCIL) whereas accused No.
  1 (Warren Anderson) was absconding and the Court was also
  unable to bring before it the other two companies, UCC and
  Union Carbide Eastern Inc., accused Nos. 10 and 11.
c         3. The accused after having unsuccessfully challenged the
    order framing charge by the Court of Sessions before the
    Madhya Pradesh High Court, brought the matter to this Court
    in four separate appeals in which the leading case was Appeal
    (Cri.) No. 1672 of 1996 filed at the instance of accused No. 2
D   which stood ultimately disposed of by the judgment of the
    Division Bench of this Court dated September 13, 1996 in the
    case of Keshub Mahindra (supra). This Court held that on the
    material produced by the prosecution before the Trial Court at
    the stage of framing of charges, no charges could have been
E   framed against the accused under Section 304 (Part II) or under
    Sections 324, 326, 429 with or without the aid of Section 35
    IPC and it accordingly quashed the charges framed by the
    Sessions Court and directed that on the material led by the
    prosecution the charge under Section 304A IPC could be made
F   out against accused Nos. 5, 6, 7, 8 and 9 and under the same
    sections with the aid of Section 35 against accused Nos. 2, 3,
    4 and 12. Applications seeking leave to file a review petition
    being Criminal Misc. Petition Nos. 1713-16 of 1997 in a
    proposed review petition stood dismissed on March 10, 1997.
G   These applications were filed jointly by Bhopal Gas Peedith
    Sangharsh Sahyog Samiti (BGPSSS), Bhopal Gas Peedith
    Mahila Udyog Sangathan (BGPMUS) and Bhopal Group for
    Information and Action (BGIA). The CBI/State of M.P. did not
    question the said 1996 judgment or filed any review petition
H   under Article 137 of the Constitution and instead proceeded
C.B.I. AND ORS. v. KESHUB MAHINDRA ETC. ETC. 389
              [S.H. KAPADIA, CJI.]
for the next 14 years to prosecute the accused under Sections . A
304A, 336, 337, 338 read with Section 35 IPC. It is only on 26th
April, 2010, after the defence evidence stood concluded and
after conclusion of the oral arguments by the Senior Public
Prosecutor, that, a petition was filed jointly by BGPSSS and
BGPMUS under Section 216 Cr.P.C. for enhancement of the B
charge to Section 304 (Part II) IPC. This application was not
supported by CBI. The said application was rejected by the
C.J.M. on the same day. However, this order of the C.J.M. was
also never challenged under Section 397/399 or under Section
482 Cr.P.C. Ultimately on June 7, 2010 Criminal Case No. c
 1104 of 1984 stood disposed of by the C.J.M. vide his
judgment convicting accused Nos. 2 to 5, 7 to 9 and 12 under
Sections 304A, 336, 337, 338 read with Section 35 IPC and
sentencing them to two years' imprisonment. On June 29, 2010
Criminal Appeal No. 369 of 2010 was filed by State of M.P. D .
before the Court of Sessions with a prayer for enhancement of
sentences under the existing charges. On the same day the
State of M.P. also filed Criminal Revision Application No. 330
of 201 O before the Court of Sessions under Section 397
Cr.P.C., challenging the alleged failure of the C.J.M. to enhance
the charges to Section 304 (Part II) in exercise of his jurisdiction E
under Section 216 Cr.P.C., and to commit the trial of the case
to Sessions under Section 323 Cr.P.C. and inter alia praying
for a direction to enhance charges and commit. On July 29,
2010 Criminal Appeal No. 487 of2010 was filed by the CBI
before the Court of Sessions for enhancement of sentences F
under the existing charges. On 23rd August, 2010, CBI fil
d the criminal revision only after the present curative petitions
were filed before this Court on August 2, 2010. All the appeals
and revisions remain pending before the Court of Sessions. ·
                                                                        G
     4. It is clear to us that in the criminal revisions filed by the
CBI and the State of M.P. the legal position is correctly stated.
But the curative petitions are based on a plea that is wrong and
fallacious. As noted above, one of the main planks of the
curative petitions is that even though in course of trial before        H
    390     SUPREME COURT REPORTS                 [2011] 6 S.C.R.


A the Magistrate, additional evidences have come on record that
  fully warrant the framing of the higher charge (s) and the trial of
  the accused on those higher charges, as long as the 1996
  judgment stands the Sessions Court would feel helpless in
  framing any higher charges against the accused in the same
B way as the trial court observed that in view of the judgment of
  the Supreme Court no court had the power to try the accused
  for an offence higher than the one under Section 304A of IPC.
   The assumption is wrong and without any basis. It stems from
  a complete misapprehension in regard to the binding nature
c of the 1996 judgment. No decision by any court, this Court not
  excluded, can be read in a manner as to nullify the express
  provisions of an Act or the Code and the 1996 judgment never
  intended to do so. In the 1996 judgment, this Court was at pains
  to make it absolutely clear that its findings were based on
  materials gathered in investigation and brought before the Court
0
  till that stage. At every place in the judgment where the Court ·
  records the finding or makes an observation in regard to the
  appropriat~ charge against the accused, it qualifies the finding
  or the observation by saying "on the materials produced by the
  prosecution for framing charge". "At this stage", is a kind of a
E constant refrain in that judgment. The 1996 judgment was
  rendered at the stage of sections 209/228/240 of the Code and
  we are completely unable to see how the judgment can be read
  to say that it removed from the Code sections 323, 216, 386,
  397, 399, 401 etc. or denuded a competent court of the powers
F under those provisions. In our view, on the basis of the material
  on record, it is wrong to assume that the 1996 judgment is a
  fetter aoainst the proper exercise of powers by a court of
  competent jurisdiction under the relevant provisions of the
  Code. If according to the curative petitioner, the learned
G Magistrate failed to appreciate the correct legal position and
  misread the decision dated 13.9.1996 as tying his hands from
  exercbiilg the power under Section 323 or under Section 216
  of the Code, it can certainly be corrected by the appellate/
  revisional court. In fact, the revision petitions though belatedly
H filed by the State of M.P. and the CBI (which are still pending)
.C.8.1. AND ORS. v. KESHUB MAHINDRA ETC. ETC. 391 ·
               [S.H. KAPADIA, CJI.]
have asserted this position in the grounds of revision. Moreover, A
no ground falling within the parameters of Rupa Ashok Hurra
vs. Ashok Hurra 2002 (4) sec 388 is made out in the curative
petitions. Also, no satisfactory explanation is given to file such
curative petitions after about 14 years from 1996 judgment of
the Supreme Court. The curative petitions are therefore B
dismissed.

      5. Nothing stated above shall be construed as expression
.of any view or opinion on the merits of the matters pending
 before the learned Sessions Judge, Bhopal.
                                                                 c
D.G.                           Curative Petitions dismissed.