Supreme Court of India
KESHUB MAHINDRAversusSTATE OF M.P.
- Citation
- 1996 INSC 1053
- Decided
- 13 September 1996
- Disposal
- Appeal(s) allowed
- Bench
- A M AHMADI
Holding
The prosecution evidence does not prima facie support charges under sections 304 Part II, 324, 326 and 429, but does prima facie support a charge under section 304‑A, and for accused 2, 3, 4 and 12, section 35 read with 304‑A.
Summary
The Supreme Court examined the criminal proceedings arising from the 1984 Bhopal gas tragedy, where a leak of methyl isocyanate (MIC) from a Union Carbide India Ltd plant caused thousands of deaths and injuries. Twelve individuals, including Keshub Mahindra and other senior officials, were charged under IPC sections 304 Part II, 324, 326, 429 and Section 35. The appellants challenged the charges, arguing that the prosecution evidence did not prima facie establish the elements of those offences. The Court held that the material on record failed to show the requisite knowledge or intent for culpable homicide, hurt, or mischief, thereby quashing the charges under sections 304 Part II, 324, 326 and 429. However, the Court found a prima facie case for the offence of causing death by negligence under IPC section 304‑A, and for sections 304‑A read with Section 35 against certain accused. Accordingly, the Court directed that charges under 304‑A (with or without Section 35) be framed against the appropriate accused and left open the possibility of charges under sections 336‑338. The appeals were allowed in part, and the trial court was instructed to re‑frame the charges as directed.
Issues considered
- Whether the prosecution evidence prima facie supports charges under IPC sections 304 Part II, 324, 326 and 429 against the accused.
- Whether a charge under IPC section 304‑A (causing death by negligence) can be framed on the material available.
- Whether Section 35 of the IPC can be invoked in conjunction with section 304‑A against the senior officials who were not directly operating the plant.
Legislation cited
- Code of Criminal Procedure, 1973s. 227, s. 228, s. 397, s. 482
- Constitution of Indias. Article 142
- Indian Penal Code, 1860s. 299, s. 304-A, s. 304 Part II, s. 324, s. 326, s. 336, s. 337, s. 338, s. 35, s. 425, s. 429
Subjects
Bhopal gas tragedycriminal liabilitynegligenceculpable homicideIPC 304-Acharge framingSection 35corporate liabilitySupreme Courtquashing of charges
Judgment
-11
KESHUB MAHINDRA A
v.
STATE OF M.P.
SEPTEMBER 13, 1996
(AM. AHMADI, CJ. AND S.B. MAJMUDAR, J.] B
Criminal Law :
Criminal Procedure Code, 1973 : Sections 227, 228, 397 and 482.
Criminal Proceedings-Quashing of-Bhopal Gas Tragedy-Leakage c
of highly toxic MIC gas from storage tank of plant resulting in huge loss of
human lives-Permanent/temporary injuries or total/pa1tial disablement and
loss of cattle lives-Charges framed against personnel who handle plant
substantively under Sec. 304 Part II, 324 324 and 429 !PC r/w. S. 3~
/PC-According to Expert Committee Report escape of gas on account of D
defective plant and lack and supervision by accused led to accident-Held:
material available on record prima facie did not connect accused with
offences with which they were charged-Hence, these charges quashed and set
asid~However, prima f acie charge under S. 304-A !PC made out:-Since
originally case registered under S. 304-A, charges could be framed there-
w1der-T1ial Court, could also consider on material led by prosecution
E
whether charges could be franted under Ss. 336, 337 and 338 /PC.
Penal Code, 1860:
Sections 299 and 304 Part II-Ingredients of-Accused must have done
F
an act which caused death of a person with knowledge that by such act he
was likely to cause death.
Sections 324 and 326-Ingredients and applicability of-Accused must
commit act with knowledge that by such act he was likely to cause hurt or
grievous hurt to victim. G
Sections 425 and 429-Ingredients and applicability of S. 429-/f com-
mission of 'mischief as defined in S. 425 by accused was not made out S.
429 could not be invoked.
Constitution of India, 1950 : Anicle 142. H
285
\>
286 SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.
A. Crimi11al Proceedings-Quashing of-Charges framed against accused
quashed by Supreme Court as offences alleged not prima facie made
out-However, Supreme Cowt in exercise of power under A1ticle 142 could
direct framing of charge for another offence under which case was initially
registered and as regards to which counsel for pmties addressed the Cowt with
view to avoiding multiplicity of proceedings.
B
A grim tragedy of unprecedented nature occu17"ed on the f atefu.l 11ight
when a ltigltly dangerous and to;xic gas called MIC escaped from a tank from
the factory belonging to accused No. 12-Union Carbide India Limited
resulting in huge loss of human lives, permanent/temporary injwies or
C total/pa1tial disablement and loss of cattle lives.
This ghastly tragedy had come to be known as 'Bhopal Gas Tragedy'.
According to the Expe1t Committee Repolt the lethal gas MIC escaped both
on account of defective plant which was operated under the control of the
D appellants-Accused and their lack of supe1vision which led to the accident.
Charges were framed against the appellants-Accused who were actually
handling the Pla1tt (accused Nos. 2 to 9), substantively under Section 304 Pa1t
II, 324, 326 and 429 read with Section 35 of the India11 Penal Code,1860.
Aggrieved by the aforesaid charges the appellant-accused moved Criminal
Revision Applications before the High Co wt under Sections 397 and 382 of
E the Oiminal Procedure Code, 1973, which was dismissed. Hence this appeal.
On behalf ofthe·appellants-accused it was contended that as per the
chargesheet and supporting material there was no prim a f acie case that
the accused were guilty of the offence under Sections 304-A, 324, 326 and
F 429 read with Section 35 of the IPC; that there was no proximate act of the
negligence on the part of the accused which had resulted in the accidental
tragedy; that none of !he accused could be held criminally liable for the
accident; and that the charges framed against the accused were required
to be quashed.
G On behalf of the respondent-State it was contended that there was
ample material produced by the prosecution in support of the chargesheet;
that the Expert Committee Report had clearly indicated the causes of the
accident and the defects found in the running of the plant at the relevant
time; and that there was sufficient material to prim a f acie indicate that
H the accused were liable to be prosecuted.
KESHUB MAHINDRA v. STATE 2B7
Allowing the appeal in part, this Court A
HELD : 1. It is clear from Sections 227 and 228 of the Criminal
Procedure Code, 1973 that while exercising jurisdiction under Section 482
Cr.P.C. when the High Court is called upon to quash the charge pursuant
to which proceedings at the stage of trial are pending, and even when the B
High Court is called upon to quash proceedings pursuant to complaint,
only a prima facie appraisal of the allegations made in the complaint and
the material in support thereof has to be done and the Court has no
jurisdiction to go into the merits of the allegations as that stage would
come when the trial proceeds. It is, therefore, necessary to keep in view the
limited jurisdiction available to the Court regarding the permissible C
scrutiny of the prosecution case as revealed from the chargesheet and
material supporting the same framing charges against the present ac-
cused. [302-A; B; C; G]
Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja & Ors., D
AIR (1990) SC 1962 and State of U.P. v. O.P. Shanna, (1996) 2 SCALE 356,
relied on.
2. Before any charge under Section 304 Part II of the India Penal
Code, 1860 can be framed, the material on record must at least prim a f acie
show that the accused is guilty of culpable homicide and the act allegedly E
committed by him must amount to culpable homicide. In view of Section
229 of the IPC the material relied upon by the prosecution for framing a
charge under Section 304 Part II must at least plima f acie indicate that
the accused had done an act which had caused death with at least such a
knowledge that he was by such act likely to cause death. The entire material F
which the prosecution relied upon before the Trial Court for framing the
charge cannot support such a charge unless it indicates plima f acie that
on that fateful night the plant was run by the concerned accused with the
knowledge that such running of the plant was likely to cause deaths of
human beings. 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 G
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 could not even prim a f acie 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 H
288 SUPREME COURT REPORTS l1996] SUPP.6S.C.R.
A suggested that the accused had an intention to kill any human being while
operating the plant. Taking the entire material on its face value and
assuming it to represent correct factual position in connection with the
operation of the plant on tha.t fateful night it could not be said that the
said material even prima f acie called for framing of a charge against the
B concerned accused under Section 304 Part II, IPC on the spacious plea
that the said act of the accused amounted b culpable homicide because
the operation of the plant on that night ultimately resulted in deaths of
number of human beings and cattle. When on the material produced by
the prosecution no charge could be framed against any of the accused
under Section 304 Part II there would remain no occasion to press in
C service the applicability of Section 35, IPC in support of such a charge for
those accused who were not actually concerned with the running of the
plant, namely accused Nos. 2, 3, 4, and 12. [323-E]
Adam Ali Taluqdar & Ors. v. King-Emperor, AIR (1927) Cal. 324, held
D inapplicable.
3.1. For applicability of Sections 324 and 326 of the IPC the material
relied upon by the prosecution in support of such charges must show that
the concerned accused had committed the act complained of at least with
the knowledge that by such act he was likely to cause hurt or grievous hurt
E to the victim. The material pressed in service by the prosecution for fram-
ing such charges against the accused falls short of indicating that the act
of ruQning the plant on that fateful night which in its turn involved stpring
and utilising highly dangerous and volatile substance like MIC in this
storage tank could not even prima f ticie be said to have been done with the
knowledge that by such act itself simple hurt or grievous hurt was likely to
F be caused to any one. Consequently on such material even charge under
Sections 324 and 326, IPC could not have been framed against the con-
cerned accused. Once this conclusion is reached there would also remain
no occasion to press in service against the accused Nos. 2, 3, 4 as well as
12, the charge under Section 35 IPC which the prosecution sought to press
G in service along with substantive Sections 324 and 326 IPC. In fact on the
material as placed by the prosecution in support of these charges if a
charge under Section 304 Part II cannot be framed then on the parity of
reasoning no charge under Sections 324 and 326 could also be framed.
[324-A-EJ
H 3.2. Before Section 429 IPC is pressed in service the material relied
KESHUBMAHINDRAv. STATE 289
upon by the prosecution must indicate even prima f acie that the concerned A
accused by running the plant on that fateful night had knowledge that by
running such plant they were likely to cause wrongful loss or damage to the
public or to any person. The material produced by the prosecution does not
even plima f acie indicate how by running such a plant wherein highly
dangerous and volatile subs~nce like MIC was stored in tank the accused
had the knowledge that· by 'that act alone they were likely to destroy B
anybody's property or cause wrongful loss or damage to any person. Once
the applicability of Section 425, IPC dealing with 'mischier is ruled out on
such material there would remain no occasion to invoke Section 429 which
for its applicability requires the prosecution to show in the first instance
any material against the concerned accused indicating the commission of C
mischief by the accused. Therefore, on the material pressed in service by
the prosecution for framing charges against the accused no charge could
have been framed against the concerned accused either under Section 304
Part II or under Section 324, 326 or 429, IPC with or without the aid of
Section 35, IPC. On these findings all the charges will have to be quashed.
(325-A·CJ D
(
4 3.3. On the finding that the material pressed in service by the
prosecution does not indicaie even prima f acie that the accused were guilty
of an offence of culpable homicide and, therefore, Section 304 Part II was
out of picture, Section 304-A on this very finding can straightaway get
attracted at least plima facie. Because of the operation of the defective E
plant on that fateful night a highly dangerous and volatile substance like
MIC got converted into poisonous gas which snuffed off the lives of
thousands of human beings and maimed other thousands and killed
number of animals and that all happened, as seen at least plima f acie the
material led by the prosecution on record, because of rash and negligent F
act on the part of the accused who were in-charge of the plant. The material
led by the prosecution shows that there were not only structural defects
but even operational defects in the working of the plant on that fateful
night which resulted into this grim tragedy. Even though, therefore, these
accused cannot be charged for offences under Section 304 Part II, the
material led against them by the prosecution at least p1ima f acie showed G
that the accused were guilty of rash or negligent acts not amounting to
culpable homicide and by that act caused death of large number of
pers~ns.
3.4. It is true that though originally the criminal case was registered H
290 SUPREME COURT REPORTS l1996] SUPP. 6 S.C.R.
A for an offence under Section 304-A of the IPC the Central Bureau of Inves-
tigation which· took up the investigation thought it proper to press in
service Section 304 Part II and Sections 324, 326 and 429 of the IPC.
Charges under these Sections have been found to be unsustainable on the
material produced by the prosecution on record in support of these char-
ges. However that does not mean that on the material as it stands on record
B the accused cannot even p1ima f acie be alleged to have committed any
criminal offence for which they can be called upon to face the trial and that
they should get a clean chit and clear walk-over. On the question whether
on this material Section 304-A could be invoked or not, counsel for the
appellants as well as Addi. Solicitor General for the respondent-State did
c address this Court, therefore, the Court can and should, with a view to
avoid multiplicity of proceedi.ngs, exercise its powers under Article 142 of
the Constitution and decide whether the material led by the prosecution
can prima facie support charges under Section 304-A against the concerned
accused. Question of proof of rashness and negligence will arise at the stage ·'
of trial after full evidence is led by the prosecution and even by the accused
D side if at all they choose to do so and in the light of that evidence the
question would arise whether the charge as framed is made out by the
prosecution against the concerned accused. The aforesaid conclusion,
therefore, would make out a plima f acie case against accused Nos. 5, 6, 7, 8
and 9 who were in actual charge of running of the plant and would require
E them to face the trial for charge under Section 304-A of the IPC. [329-E]
State of Gujarat v. Haidarali Kalubai, [1976] 1 SCC 889; Ambala/ D.
Bhatt v. State of Gujarat, [1972] 3 SCC 525; Sulemim Rehiman Mulani &
Anr. v. State of Maharashtra, [1968] 2 SCR 515 and Kurban Hussain
Mohammedali Rangwalla v. State of Maharashtra, [1965] 2 SCR 622, held
F inapplicable.
4.1. So far as the remaining accused Nos. 2, 3, 4 and 12 are concerned
the material produced on record clearly indicates at least plima facie that
they being at the helm of affairs have to face this charge for the alleged
G negligence and rashness of their subordinates who actually operated the
plant on that fateful night and for that purpose Section 35 of the IPC would
also prim a f acie get attracted against them. A mere look at that Section
shows that if the act alleged against these accused becomes criminal on
account of their sharing common knowledge about the defective running of
plant by the remaining accused who represented them on spot and who had
H to carry out their directions from them and who were otherwise required to
KESHUB MAHINDRA v. STATE 291
supervise their activity. Section 35 of the IPC could at least prima f acie be A
invoked against accused 2, 3, 4, and 12 to be read with Section 304-A, IPC.
Consequently on the material led by the prosecution against the accused at
this stage a p1ima f acie case was made out by the prosecution for framing
charges against accused Nos. 2, 3, 4 and 12 under Section 304-A read with
Section 35 IPC while su~stantive charges under Section 304-A could be B
framed against accused ~os. 5, 6, 7, 8 and 9. (329-F; G]
Esso Standard Inc. v. Udltaram Bhagwandas Japanwalla, (1973) 45
Comp. Cas. 16, held inapplicable.
4.2. However, from the material which is produced on record there C
is a possibility of considering a further question whether charges under
Sections 336, 337 and 338 of the IPC with or without the aid of Section 35
can be framed against the concerned accused. As none of the parties have
addressed this Court on these aspects this question is left open for
consideration of the Tria' Judge who may after hearing the parties decide
whether on the material' as led by prosecution on record at this stage, D
charges, if any, can also be framed under Sections 336, 337 and 338of the
IPC with or without the aid of Section 35 of the IPC. [331-C; 332-A]
4.3. On the material led by the prosecution appropriate charges
which are required to be framed against the concerned accused are under E
Section 304-A, IPC so far as the accused Nos. 5, 6, 7, 8 and 9 are concerned
wh!le so far. as accused Nos. 2, 3, 4 and 12 are concerned charges under
Section 304-A read with Section 35 IPC will have to be framed. As these
offences are triable by the court of Judicial Magistrate 1st Class, the
Sessions Case shall be transferred to the Court of the Chief Judicial
Magistrate, 1st Class who will proceed with thetrial in accordance with.law F
and frame appropriate charges under Section 304-A with or without the aid
of Section 35, as the case may be, against the concerned accused. [332-B-C]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1672 of 1996 Etc. Etc.
G
From the Judgment and Order dated 1.8.95 of the Madhya Pradesh
High Court in Crl. R. No. 237 of 1993.
Asok H. Desai and K.K. Desai, A.K. Desai, K.J. John and Palkar for
the Appellant in Crl.A. No.1672/96. H
'
1
292 SUPREME COURT REPORTS [1996) SUPP • 6 S.C.R.
A Prasad Dakephalkar, P.H. Parekh and Ms. Bina Madhavan for the
Appellant in Crl.A. Nos. 1673, 1675 and 1674/96.
Altaf Ahmad, Additional Solicitor General, P. Parmeswaran and
S.A. Matto for the Respondent.
B
The Judgment of the Court was delivered by
S.B. MAJMUDAR, J. Leave granted in all these Special Leave
Petitions. In these appeals the concerned appellant-accused have brought
in challenge the order dated 8th April 1993 passed by the Court of 9th
C 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, 3901of1995 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
D 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 J abalpur 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. 3900of1995
is moved by Shri Keshub Mahindra who is accused No. 2 before the
E Sessions Court. Appeal arising out of S.L.P. (Crl.) t'io. 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. 3932of1995 is moved by six accused being Shri J. Mukund
F accused No. 5, Dr. R.B. Roy Choudhary accused No. 6, Shri S.P. Chaud-
hary accused No. 7, Shri K.V. Setty accused No. 8, Shri S.I. Qureshi
accused No. 9 and Union Carbide India Limited ('UCTL' 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 J abalpur under Sections 397 and 482 of the Code of Criminal
G .
Procedure (Cr.P.C.) for quashing the aforesaid charges.
With a view to highlighting the grievances of the appellants a few
relevant facts deserve to be noted at the outset.
H Introductory Facts
KESHUB MAHINDRA v. STATE (S.B. MAJMUDAR, J.] 293
A grim tragedy of unprecedented nature occurred at Bhopal on the A
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, B
tei:nporary 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 Criminal Case No.
c
1104 of 1984 was registered at the Police Station Hanumanganj, Bhopal on
3rd December 1984 by the Station House Officer sou 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 D
accused No. 10. Accused No. 2 Keshub Mahindra was the r:hairman 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 E
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. Choud-
hary, Production Manager of the Bhopal Plant. Shri K.V. Shetty, Plant
Superintendent of the said Bhopal plant was accused No. 8. Shri S.I. F
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 9 were stationed at Bhopal and were incharge of the Bhopal Plant
itself.
G
On the registration of the aforesaid Crime Case the Station House
. Officer, Bhopal, arrested five employees of the factory, namely, accused
Nos. 5 to 9 and they were kept in police custody. Accused Nos. 1, 2 and 3
were arrested on 7th December 1984. Out of them accused No. 1 Shri
Warren Anderson was released on bail the same day. On 6th of December H
294 SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.
A 1984 the case was handed over to the CBI. On completion of investigation
the chargesheet was presented by the CBI in the Court of CJM, Bhopal on
1st December 1987.
In the present proceedings we are not concerned with the question
of compensation payable to the gas-disaster victims at Bhopal and the
B
various steps taken by the Government of India in this connection. We,
therefore, do not dilate on these aspects. Suffice it is to state that by earlier
orders of this Court dated 14th February 1989 and 15th February 1989 all
criminal proceedings relating to and arising out of the Bhopal Gas Disaster
were quashed by this Court. As a result the proceedings in the present case
C which were then pending in the Committal Court stood terminated. How-
ever the said order was reviewed by this Court on 3rd October 1991 and
the above criminal proceedings were restored. After their restoration the
case was committed to the Court of Sessions. Commitment was made by
order dated 30th April 1992. On the case being committed to the Court of
D Sessions it was registered as Sessions Trial Case No. 237 of 1992 as
aforesaid. It appears that trial of the criminal case against accused No. 1
Warren Anderson, accused no. 10 UCC and accused No. 11 Union Car-
bide (Eastern) -Inc., Hongkong had to be segregated and split up as the
concerned accused were absconding. The trial proceeded against remain-
ing accused Nos. 2 to 9 and 12. In the light of the supporting material
E produced by the prosecution before the Sessions Court along with the
chargesheet and its contents the Sessions Court was requested by the
prosecution to frame appropriate charges against the concerned accused
against whom the trial had to proceed. After hearing the prosecution as
well as the learned counsel for the concerned accused the learned 9th
F Additional Sessions Judge, Bhopal passed order dated 8th April 1993
framing charges against the concerned accused. As these charges have
been seriously brought into challenge it would be apposite to reproduce
the charges as framed by the learned Trial Judge against the concerned
accused. So far as accused No. 2 Keshub Mahindra is concerned four
charges were framed against him as under :
G
"Firstly : That on or about the night intervening 2nd and 3rd
December, 1984 at Bhopal, the Capital of M.P. co-accused persons
S/Shri Kishore Kamdar/J. Mukund/R.B. Roy Choudhary/S.B.
Choudhary/KV. Setty and S.I. Qureshi committed culpable
H homicide not amounting to murder by causing death of 3828 or
KE.SHUB MAHINDRA v. STATE [S.B. MATMUDAR, J.) 295
more human beings by allowing the highly toxic gas known by the A
name of MIC to escape from tank No. 610 of AP. Division plant
of UCIL knowing that it was likely to cause deaths and you sharing
this common knowlege with them did not do anything to avoid the
said escape of gas thus you thereby committed on each courts an
offence punishable under Sec. 304 (II) R/W Sec. 35 of the IPC and
B
within the cognizance of the Court of Session.
Secondly: That on the above date and at the above place, above
co-accused persons by allowing to escape from the above tank the
corrosive substance known by the name of MIC gas, knowing that
it was likely to cause grevious hurts, thus voluntarily (as defined c
U/S 39 IPC) caused grevious hurts to 21694 or more human beings
and you sharing this common knowledge with them .did not do
anything to avoid the said escape of gas thus you thereby com-
mitted on each count an offence punishable under section 326 R/W
Sec. 35 IPC and within the cognizance of the Court of Sessions.
D
17tirdly : That on the above date and at the above place, co-accused
persons by allowing to escape from the above tank the corrosive
substance known by the name of MIC gas knowing that it was likely
to cause hurts, thus voluntarily (ai defined Under Sec. 39 IPC)
caused hurts to 8485 or more human beings and you sharing this E
common knowledge with them did not do anything to avoid the
said escape of gas, thus you the_reby committed on each count an
offence punishable U/S 324 R/W Sec. 35 IPC and within the
cognizance of the Court of Sessions.
Fourthly : That on the above date and at the above place the above F
accused persons by allowing MIC gas to escape from the above
tank knowing that it was likely to cause death of animals, com-
mitted mischief by killing thereby 2544 or more animals of various
descriptions each valuing more than Rs. 50 and you sharing this
common knowledge with them did not do anything to avoid the G
said escape of gas, thus you thereby committed on each count an
offence punishable U/S 429 R/W Sec. 35 IPC and within the
cognizance of the Court of Sessions."
Charges framed against accused No. 3 V.P. Gokhale were identical
with the charges framed against accused No. 2. H
296 SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.
A Charges framed against accused No. 4 Kishore Kamdar ran as under:
"Firstly : That on or about the. night intervening 2nd and 3rd
December, 1984 at Bhopal, the Capital of M.P. co-accused persons
S/Shri Kishore Kamdar/J. Mukund/R.B. Roy Choudhary/S.P.
Choudhary/KV. Shetty and S.I. Qureshi committed culpable
B homicide not amounting to murder by causing death of 3828 or
more human beings by allowing the highly toxic gas known by the
name of MIC to escape from tank No. 610 of A.P. Division Plan1
of UCIL knowing that this common knowledge with them did not
do any thing to avoid escape of gas thus you thereby committed
c on each count an offence punishable U/S 304(II) R/W Sec. 35 of
the I.P.C. arid within the cognizance of the court of Sessions.
Secondly : That on the above date and at the above place, above
co-accused persons by allowing to escape from the above tank the
corrosive substance known by the name of MIC gas, knowing that
D it was likely to cause grevious hurts, thus voluntarily (as defined
U/S 39 IPC) caused grevious hurts to 21694 or more human beings
and you sharing this common knowledge with them did not do
anything to avoid the said escape of gas, thus you thereby com-
mitted on each count an offence punishable U/S 326 R/W Sec. 35
E IPC and within the cognizance of the Court of Sessions.
17iirdly : That on the above date and at the above place, above
co-accused persons by allowing to escape from the above tank the
corrosive substance known by the name of MIC gas, knowing that
it was likely to cause hurts, thus voluntarily (as defined U/S. 39
F IPC) caused hurts to 8485 or more human beings and you sharing
this common knowledge with them did not do anything to avoid
the said escape of gas, thus you thereby committed on each count
an offence punishable U/S. 324 R/W Sec. 35 IPC and within the
cognizance of the Court of Sessions.
G Fowthly: That on the above date and at the above place, the above
co-accused persons by allowing MIC gas to escape from the above
tank knowing that it was likely to cause death of animals, com-
mitted mischief by killing thereby 2544 or more animals of various
descriptions each valuing more than Rs. 50 and you sharing this
H common knowledge with them did not do any thing to avoid the
KESHUBMAHINDRAv.STATE[S.B.MAJMUDAR,J.] 297
said escape of gas, thus you thereby committed on each count an A·
offence punishable U/S. 429 R/W Sec. 35 IPC and within the
cognizance of the Court of Sessions."
Charges framed against accused No 5 J. Mukund were as under:
"Firstly : That you on or about the night intervening 2nd and 3rd
B
December, 1984 at Bhopal, the capital of M.P. committed culpable
homicide not amounting to murder by causing death of 3828 or
more human beings by allowing the highly toxic gas known by the
name of MIC to escape from tank No. 610 of A.P. Division Plant
of UCIL, knowing that it was likely to cause deaths and you thereby C
committed on each count an offence punishable U/S 304(II) l.P.C.
and within the cognizance of the court of Sessions.
Secondly : That you on the above date and at the above place by
allowing to escape from tank No. 610 of the A.P. Division Plant D
of UCIL, a corrosive substance known by the name of MIC gas,
knowing that it was likely to cause grevious hurts, thus voluntarily
(as defined U/S. 39 IPC) caused grevious hurts to 21694 or more
human beings and, thereby committed on each count an offence
punishable U/S. 326 IPC and within the cognizance of the Court
of Sessions. E
Third(v : That on the above date and at the above place by allowing
to escape from tank No. 610 of A.P. Division Plant of UCIL, a
corrosive substance known by the name of MIC gas, knowing that
it was likely to cause hurts, thus voluntarily (as defined U/S. 39 F
IPC) caused hurts to 8485 or more human beings and thereby
committed on each count an offence punishable U/S. 324 l.P.C.
and within the cognizance of the Court of Sessions.
Fourthly : That on the above date and at the place by allowing to G
escape from tank No. 610 of the A.P. Division Plant of UCIL,
knowing that it was likely to cause death of animals, committed
mischief by killing thereby 2544 or more animals of various descrip-
tions each valuing more than Rs. 50 and thereby committed on
each count an offence punishable U/S. 429 IPC and within the
cognizance of the Court of Sessions." H
298 SUPREME COURT REPORTS 11996) SUPP. 6 S.C.R.
A Identical charges were framed against accused No. 6 R.B. Roy
Choudhary, accused No. 7 S.P. Choudhary, accused No. 8 K.V. Shetty and
accused No. 9 S.I. Qureshi while UCIL, Calcutta accused No. 12 had to
face the following charges :
"Firstly : That on or about the night intervening 2nd and 3rd
B December, 1984 at Bhopal, the Capital ofM.P. co-accused persons
S/Shri Kishore Kamdar/J. Mukund/R.B. Roy Choudhary/S.P.
Choudhary/K. V. Shetty and SJ. Qureshi committed culpable
homicide not amounting to murder by causing death of 3828 or
more human beings by allowing the highly toxic gas known by the
c name of MIC to escape from tank No. 610 of AP. Division Plant
of UCIL knowing that it was likely to cause deaths and you sharing
this common knowledge with them did not do any thing to avoid
the said escape of gas thus you thereby committed on each count
an offence punishable U/S 304(11) R/W Sec. 35 of the I.P.C. and
within the cognizance of the court of Sessions.
D
Secondly : That on the above date and at the above place, above
co-accused persons by allowing to escape from the above tank the
corrosive substance known by the name or MIC gas, knowing that
it was likely to cause grevious hurts, thus voluntarily (as defined
E UIS 39 IPC) caused grevious hurts to 21694 or more human beings
and you sharing this common knowledge with them did not do
anything to avoid the said escape of gas, thus you thereby com-
mitted on each count an offence punishable U/S. 326 R/W Sec. 35
IPC and within the cognizance of Court of Sessions.
F 17zirdly : That on the above date and at the above place, above
co-accused persons by allowing to escape from the above tank the
corrosive substance known by the name of MIC gas, knowing that
it was likely to cause hurts, thus voluntarily (as defined U/S. 39
IPC} caused hurts to 8485 or more human beings and you sharing
this common knowledge with them did not do anything to avoid
G
the said escape of gas, thus ym1 thereby committed on each count
an offence punishable U/S. 324 R/W Sec. 35 IPC and within the
cognizance of the Court of Sessions.
Fowthly: That on the above.date and at the above place, the above
H co-accused persons by allowing MIC gas to escape from the above
....
KESHUB MAHINDRA v. STATE [S.B. MAJMUDAR,J.] 299
tank knowing that it was likely to cause death of animals, com- A
mitted mischief by killing thereby 2544 or more animals of various
descriptions each valuing more than Rs. 50 and you sharing this
common knowledge with them did not do any thing to avoid the
said escape of gas, thus you thereby committed on each count an
offence punishable U/S. 429 R/W. Sec. 35 IPC and within the B
cognizance of the Court of Sessions."
All these accused being aggrieved by the aforesaid charges framed
by the learned Sessions Judge approached the High Court of Madhya
Pradesh at Jabalpur in Criminal Revision Applications moved under Sec-
tions 397 and 482 of the Cr.P.C. as noted earlier. The High Court of C
Madhya Pradesh by common judgment in three Criminal Revising Applica-
tions Nos. 237/93, 238/93 and 312/93 moved by accused Nos. 2, 3 and 4
respectively, was pleased to dismiss the same by upholding the charges
framed against these accused. Similarly Criminal Revision Application No.
311/93 moved by accused No. 5 J. Mukund, accused No. 6 R.B. Roy D
Choudhary, accused No. 7 S.P. Choudhary, accused No. 8 K.V. Shetty,
accused No. 9 S.I. Qureshi and accused No. 12 UCIL was also dismissed
by a separate order of even date. It is under these circumstances that the
concerned accused are in appeal before us on special leave.
Learned senior counsel Shri Ashok Desai appearing for accused No. E
2 Keshub Mahindra, learned senior counsel Shri Nariman, appearing for
accused No. 3 V.P. Gokhale and learned senior counsel Shri Rajendra
Singh, appearing for the remaining accused vehemently contended that
taking the case of the prosecution at the highest as reflected by the contents
of the chargesheet and the supporting material it could not be even prima F
;
f acie said that the concerned accused were guilty of offence of culpable
homicide not amounting to murder as envisaged by Section 304 Part II,
IPC with which they are charged. That there was no question of the
concerned accused having done any act on that fateful night at Bhopal
which was done with the knowledge that they were likely by such act to G
cause death and consequently they could not have been charged on the
material produced by the prosecution before the Trial Court at this stage
of the trial for the offence of culpable homicide not amounting to murder.
It was also submitted that on the same reasoning they could not have been
charged for offence under S~ctloii 326 IPC for voluntarily causing grievous
hurt or for that matter for ·the offence under Section 324 for voluntarily H
300 SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.
A causing hurt by dangerous means. It was also contended that on the same
parity of reasoning no case is made out against the concerned accused
under Section 429 IPC for having committed mischief by killing, poisoning
or maiming any animals. It was also submitted that so far as accused Nos.
2, 3 and 4 were concerned they were stationed at Bombay and they were
B not concerned with the day to day working of the Plant at Bhopal. Conse-
quently there was no question of framing any charge against them for the
aforesaid offences read with Section 35 of IPC as there was no evidence
whatsoever for even alleging against these accused that they had any
criminal knowledge in connection with the misshap that occurred on that
fateful night at Bhopal. It was also contended by the aforesaid learned
C senior counsel that even lesser charge under Section 304-A, IPC also could
not have been framed on this material as nothing was alleged by the
prosecution at this stage about any proximate act of the negligence on the
part of the concerned accused which had resulted into this accidental
tragedy. That if at all it ·was an unfortunate accident which had taken heavy
D toll of human lives and cattle wealth, however, none of the accused could
be held criminally liable for the said accident. It was, therefore, contended
that the charges as framed against the concerned accused are required to
be quashed and the High Court had erred in not exercising its jurisdiction
in that behalf.
E On the other hand learned Additional Solicitor General Shri Altaf
Ahmed submitted that there was ample material produced by the prosecu-
tion in support of the chargesheet which clearly indicated that all the
concerned accused shared common criminal knowledge about the potential
danger of escape of the lethal gas MIC both on account of defective plant
F which was operated under their control and supervision at Bhopal and also
on account of the operational shortcomings detected by the Expert Com-
mittee which had gone into the causes of this unfortunate accident, namely,
Vardarajan Committee which was constituted by the Government of India
for that purpose. That the report of the Scientific and Industrial Research
team had clearly indicated the causes of this tragedy and the defects found
G in the running of the Plant at the relevant time. That this material indicated
that all the accused were properly charged for the offences alleged against
them and that the court at this stage was not concerned with the t'nrth or
falsity of the allegations with which the prosecution has charged them. That
at this stage only enquiry into the prima f acie nature of the allegations
H supporting these charges has to be made and if there is any material to·
KESHUBMAHINDRAv.STATE(S.B.MAJMUDAR,J.] 301
prim a f acie indicate that the concerned accused were liable to be A
prosecuted for the charges with which they are indicated the trial is
required to be permitted to proceed further and should not be nipped in
the bud as the appellants would like to have it. In support of the respective
contentions learned senior counsel for the appellants as well as learned
Additional Solicitor General relied upon various decisions of this Court to B
which we will make a reference at appropriate stage in latter part of this
judgment.
Before we deal with the nature of the material produced by the
prosecution before the Trial Court for framing the charges against the
concerned accused it will be necessary to keep in view the limited nature C
of the jurisdiction available to the court for deciding whether the charges
framed are legally sustainable on the basis of the material available at this
stage. Section 227 of the Cr.P.C. lays down that, 'if, upon consideration of
the record of the case and the documents submitted therewith, and after
hearing the submissions of the accused and prosecution in this behalf, the D
Judge considers that there is not sufficient ground for proceeding against
the accused, he shall discharge the accused and record his reasons for so
doing'. On the other hand as enjoined by Section 228, if after such con-
sideration and hearing as aforesaid the Judge is of opinion that there is
ground for presii'I:ning that the accused has committed an offence, then
subject to the procedure laid down by sub-sections (a) and (b) of the said E
Section the charge shall be framed in writing against the accused. In the
case of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja &
Ors., AIR (1990) SC 1962, one of. us A.M. Ahmadi, J. (as His Lordship
then was) speaking for the Division Bench of this Court in this connection
observed as under : F
"It seems wel\ ~ettled that at the Ss. 227-228 stage i.e., stage of
framing the charge, the Court is required to evaluate the material
and documents on record with a view to finding out if the facts
emerging therefrom taken at their face value disclose the existence G
of all the ingredients constituting the alleged offence. The Court
may for this limited purpose sift the evidence as it cannot be
expected even at that initial stage to accept all that prosecution
states as gospel truth even if it is opposed to common sense or the
broad probabilities of the case." H
302 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A It is also well settled that while exercising jurisdiction under Section 482 ...
Cr.P.C. when the High Court is called upon to quash the charge pursuant
to which proceedings at the stage of trial are pending, and even when the
High Court is called upon to quash proceedings pursuant to complaint,
only a plima f acie appraisal of the allegations mqde in the complaint and
B the material in support thereof has to be done and the Court has jurisdic-
tion to go into the merits of the allegations as that stage would come when
the trial proceeds. In this connection we may usefully refer to a judgment
rendered by a Bench of three learned Judges of this Court in the case of
State of U.P. v. O.P. Shanna, (1996) 2 SCALE 356. Relying on earlier
decisions of this Court the Bench in the aforesaid case made the following
C pertinent observations in paragraphs 11 and 12 of the Report :
"The question then is : whether the High Court is right in its
exercise of inherent power under Section 482 Cr.P.C.? This Court
in State of Himachal Pradesh v. Pirthi Chand &Anr., (Crl. A. 1752
of 1995) decided on November 30, 1995 held as under :
D
'It is thus settled law that the exercise of inherent power of
the High Court is an exceptional on~ Great care should be
taken by the High Court before embarking to scrutinise the
FIR/charge-sheet/complaint. In deciding whether the case is
E rarest of rare cases to scuttle the prosecution in its inception,
it first has to get into the grip of the matter whether the
allegations constitute the offence. It must be remembered
that FIR is only an initiation to move the machinery and to
investigate into cognisable offence. After the investigation is
F conducted and the charge-sheet is laid the prosecution
produces the statements of the witnesses recorded under
Section 161 of the Code in support of the charge-sheet. At
that stage it is not the function of the court to weigh the pros
and cons of the prosecution case or to consider necessity of
strict compliance of the provisions which are considered
G mandatory and its effect of non-compliance. It would be done
after the trial is concluded. The Court has to p1ima f acie
consider from the averments in the charge-sheet and the
statements of witnesses on the record in support thereof
whether court could take cognizance of the offence, on that
H evidence and proceed further with the trial. If it reaches a
KESHUB MAHINDRAv. STATE [S.B. MAJMUDAR,J.] 303
conclusion that no cognisable offence is made out no furthf?r A
act could be done except to quash the charge sheet. But only
in exceptional cases. i.e. in rarest of rare cases of mala fide
initiation of the proceedings to wreak private vengeance
process of criminal is availed of in laying a complaint or FIR
itself does not disclose at all any cognisable offence - the B
court may embark upon the consideration thereof and exer-
cise the power.
In State of Bihar v. Rajendra Agrawal/a, (Cd.A. No. 66 of 1996) C
decided on January 18, 1996, this Court observed as under :
'It has been held by this Court in several cases that the
inherent power of the court under Section 482 of the Code
of Criminal Procedure should be very sparingly and cautious-
ly used only when the court comes to the conclusion that D
there would be manifest injustice or there would be abuse of
the process of the court if such power is not exercised. So far
as the order of cognizance by a Magistrate is concerned, the
inherent power can be exercised when the allegations in the
First Information Report or the complaint together with the E
other materials collected during investigation taken at their
face value, do no~ constitute the offence alleged. At that stage
it is not open for the court either to shift the evidence or
appreciate the evidence and come tn the conclusion that no
prima facie case is made out."'
F
Keeping in view the aforesaid well settled limited jurisdiction regarding the
permissible scrutiny of the prosecution case as revealed from the char-
gesheet and the material supporting the same for framing charges against
the present accused we will now proceed to examine the available material
on record of the case which has resulted into the framing of the impugned G
charges against the appellant-accused.
Material in Support of the prosecution case
In the first place we may glance through the relevant recitals in the
chargesheet presented by the agency before the court which has resulted H
304 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A into the framing of the impugned charges. The said chargesheet is found
at page 1 of the compilation in appeal arising out of S.L.P. (Crl.) No.
3900/95. As noted earlier the chargesheet indicts 12 accused out of which
the present 9 appellants in these four appeals are accused Nos. 2 to 9 and
12 respectively. In column 5 of the chargesheet are found listed main
findings of the investigating agency in connection with this unfortunate
B tragedy. The relevant recitals therein read as under :
"Union Carbide India Ltd., the majority share holding in which is
held by U.C.C., USA, was running a factory at Bhopal for the
manufacture of pesticides. The main chemical from which the
c pesticide Sevin was manufactured was Methyl Isocynate
(CII3N = C-0) which was also being manufactured in the same
factory and was being stored in underground tanks. The factory is
presently not functioning.
2. Ori the night of 2nd/3rd December, 1984 from about 0034 to
D
0045 hrs. (on 3rd December, 1984) onwards, MIC started to escape
from tank No. 610 in the factory in large quantities causing the
death of thousands of human beings and animals .... and injuring
also the health of many thousands of human beings and animals.
E 3. Crime No. 1104/84 was registered at Police Station, Hanuman-
ganj, Bhopal, on 3rd December, 1984, by the S.H.O., Shri Surinder
Singh Thakur. Inspector who observed people dying around the
factory of Union Carbide India Ltd. Bhopal (UCIL) due to escape
of some gas from the factory. He registered the case suo moto
F under Section 304A IPC. There was no information available at
that stage from anyone in the factory. Based on enquiries made by
him during the course of the day, five employees of the factory
(AS to A9) were arrested and kept in police custody. Accused No.
1 Shri Warren Anderson was arrested alongwith accused No. 2 &
3 on 7th December, 1984. Shri Warren Anderson was released on
G bail the same day by the 1.0. After completing the required legal
formalities, C.B.I. (D.P.S.E.) registered a case on 6th December,
1984 as RC-3/84-CIU(I) U/S 304A IPC and received the records
of the case from the local police on 9th December, 1984 alongwith
A2, A3 and AS to A9 in police custody from the Madhya Pradesh
H Police.
KESHUBMAHINDRAv.STATE[S.B.MATMUDAR,J.] 305
4. Investigation has revealed that the Union Carbide Corporation A
·is a company with headquarters in U.S.A. having affiliate and
subsidiary companies throughout the world. There subsidiaries
were supervised by four regional offices which were controlled by
UCC, USA UCIL is a subsidiary of UCC, USA Union Carbide
Eastern Inc. with· its office in Hongkong is the regional office of
B
UCC, USA which controlled UCIL, India besides others. UCC,
USA get incorporated in India on 20th June, 1934, a Company
known as the Eveready Company (India) Ltd. under the Indian
Companies Act (Act VII) of 1913 with the Registrar of Joint Stock
Companies, Bengal. The Name of the Company was further
changed w.e.f. 24th December. 1959 into Union Carbide India Ltd. c
under the Indian Companies, 1956. The UCC was a majority
shareholder (50.9%) in UCIL. UCC was nominating its own Direc-
tors to the Board of Directors of the UCIL and was ex~rcising
strict financial, administrative and technical control on the Union
Carbide India Limited. Thus, all major decisions were taken under D
the orders of the Union Carbide Corporation to America. The
evidence collected during the investigation proves that UCC was
in total control of all the activities of UCIL.
5. The ~nvestigation of this case was dependent on highly scientific
and technical evaluation of the events which led to the escape of E
MIC gas from the UCIL plant at Bhopal. The Government of India
therefore constituted, immediately after the incident, a team
headed by Dr. S. Varadarjan, then D.G./C.S.LR. to study all the
scientific\~nd technical aspects and submit their report. Dr. M.
Sriram, Chief Research and Development Manager, Hindustan F
Organic Chemicals, Rasayani, District Ralgad (Maharashtra), was
member as well as the co-ordinator of the Scientific Team. Dr.
Varadarajan submitted the report in December, 1985. A further
back up report was submitted by the C.S.I.R. in May, 1987. These
reports furnish, inter alia, the causes that led to the incident.
G
6. Investigation has revealed that UCIL started importing Sevin
from the UCC, USA in December, 1960. They were marketing this
Sevin after adding dilutants etc. Subsequently, they decided to
manufacture Sevin in their plant at Bhopal itself and accordingly
created necessary facilities for production of Sevin MIC as the H
306 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A basic raw material. To start with; they were importing MIC in 200
litres capacity stainless steel drums from the UCC Plant in West
Virginia, USA Subsequently UCC and UCIL decided to manufac-
ture MIC in their factory at Bhopal itself.
7. At that stage on 13th November, 1973, UCC and UCIL entered
B into an agreement entitled Foreign Collaboration Agreement ac-
cording to which the best manufacturing information then available
from or to Union Carbide had to be provided for the factory in
India. This necessitated UCC supplying the design, knowhow and
safety measures for the production, storage and use of MIC which
c ought to have been an improvement on the factory of UCC at West
Virginia based on the experience gained there. Investigation has
however disclosed that the factory at Bhopal was deficient in many
safety aspects. The design, know-how and safety measures were
provided by the Union Carbide Corporation, USA and the erec-
tion and commissioning of the plant was done under the strict
D control of the experts of UCC. The Indians in this plant were only
working under their di~ections.
8. After an initial period of profits, the UCIL factory was running
in loss. The loss for the first 10 months of 1984 amounted to Rs.
E 5,03,39,000. Due to this, U.C.E. Hongkong directed UCIL vide
their letter dated 26 October, 1984 that the factory at Bhopal
should be closed down and sold to any available buyer. As no buyer
became available in India, UCE, Hongkong directed UCIL to
prepare an estimate for dismantling the factory and shipping it to
F Indonesia or Brazil where they probably had some buyers. These
estimates were completed towards the end of November, 1984.
9. The investigation conducted by the C.B.I., the report of the
scientific team established by Government of India and in par-
ticular the literature and manuals etc. regarding MIC of Union
G Carbide Corporation itself prove that MIC is reactive, toxic,
volatile and flammable. It is a highly hazardous and lethal material
by all means of contact and is a poison. Skin contact with MIC can
cause severe burns. MIC can also seriously injure the eyes even in
its concentrations. Exposure to MIC is extremely irritating and
H would cause chest pain, coughing, choking and even pulmonary
KF.SHUBMAHINDRAv.STATE[S.B.MAJMUDAR,J.] 307
"
edema. On thermal composition, MIC would produce hydrogen A
cyanide, nitrogen oxide, carbon monoxide and/or carbon dioxide.
10. MIC has to be stored and handled in stainless steel of types
304 or 316, namely, good quality stainless steel. Using any other
material could be pangerous. In particular, iron o; steel,
aluminium, zinc or galvanized iron, copper or tin or their alloys
B
could not be used for purposes of storage, transfer/transmission of
MIC. This would mean that even the pipes and valves carrying
MIC had also got to be of the prescribed stainless steel. In other
words, at no stage should MIC be allowed to come into contact
with any of the metals mentioned above. c
11. The tanks storing MIC, have to be, for reasons of safety, twice
the volume of the MIC to be stored. It was also advised by UCC
itself that an empty tank should also be kept available at all times
for transferring MIC from its storage tank to the stand by tank on D
occasions of emergency. MIC has to be stored in the tanks under
pressure by using nitrogen wh~ch does not react with MIC. The
temperature of the tank with MIC has to be maintained below 15
degree celsius and preferably at about 0 degree celsius. The storage
system and the transfer lines have to be free of any contaminants
as even trace quantities of contaminants are sufficient to initiate E
reaction which could become runaway reaction. On reaction set-
ting in, there could be dangerous and rapid trimerization. The
induction period could vary from several hours to several days.
The heat generated could cause reaction of explosive violence. In
particular, water reacts exothermically to produce heat and carbon F
dioxide. Consequently, the pressure in the tank will rise rapidly if
MIC is contaminated with water. The reaction may begin slowly,
especially if there is no agitation, but it will become violent. UCC
itself states that with bulk systems contamination is more likely
than with tightly sealed drums. All these properties of MIC show
that despite all the safety precautions that could be taken, storage G
of large quantities of MIC in big tanks was fraught with consider-
able risk.
12. Investigation 'has disclosed that at the time when the incident
took place there were thee partially buried tanks in the factory at H
308 SUPREME COURT REPORTS l 1996) SUPP. 6 S.C.R.
A Bhopal. These were numbered E 610. E 611 and E 619. MIC was
being stored generally in the tanks E 610 and E 611. E 619 was
supposed to be the stand by tank. In the normal running of the
factory, MIC from E 610 and E 611 was being transferred to the
Sevin plant through stainless steel pipe lines. MIC is kept under
pressure by nitrogen which is supplied by a carbon steel header
B
common to all the storage tanks. There is a strainer in the nitrogen
line. Subsequent to the strainer the pipe is of carbon steel and
leads to make up control valve (DMV) which also has a body of
carbon steel. These carbon steel parts could get exposed to MIC
vapours and get corroded, providing a source of contaminant
c which could enter the MIC storage tank and cause dangerous
reactions in the MIC. During the normal working of the factory,
MIC fumes and other gases that escape pass first through a pipe
line called Process Vent Header (PVH) of 2" diameter. The
escaping gases were carried by the PVH line to a Vent Gas
Scrubber (VGS) containing alkali solution which would neutralize
D
the escaping gases and release them into the atmosphere. Another
escape line of such gases that was provided from the tanks was the
Relief Valve Vent Header (RVVH) of 4"diameter. Normal pres-
sure of the MIC tank is shown by a pressure indicator. When the
pressure in the tank exceeded 40 psig, a rupture disc (RJ?) leading
E to a safety relief valve (SR V) had to break and the said SRV in
the R VVH line open automatically to allow the escaping gas to
travel through the RVVH line to the VGS for neutralization.
13. Investigation has shown that the PVH and R VVH pipe lines
as well as the valves therein were of carbon steel. Besides, on
F
account of design defect these lines also allowed back flow of the
alkali solution from the VGS to travel upto the MIC tanks.
14. A very essential requirement was that the MIC tanks in the
factory had to be kept under pressure of the order of 1 Kg./cm2g
G by using nitrogen, a gas that does not react with MIC. However,
MIC in tank No. 610 was stored under nearly atmospheric pressure
from 22nd October, 1984 and attempts to pressurize it on 30th
November and 1st December, 1984 failed. The design of the plant
ought not have allowed such a contingency to happen at all. The
H tank being under nearly atmospheric pressure, free passage was
·'
KE.SHUB MAHINDRA v. STATE [S.B. MAIMUDAR, J. J 309
available for the entry of back flow of the solution from the VGS A
into the tank. According to the report of Dr. Varadarajan Com-
mittee, about 500 Kgs. water with contaminants could enter tank
610 through RVVH/PVH lines. The water that entered RVVH at
the time of water flushing along with backed up alkali solution
from the VGS already present could find its way into the tank 610
B
through the RVVH/PVH lines via the blow down DMV or through
the SRV and RD.
15. The first indication of any reaction in the tanks comes through
the pressure and temperature indicators. The thermowell and
temperature transmitting lines were out of order throughout and C
no temperature was being recorded for quite sometime. Pressure
was also being recorded at the end of each shift of 8 hours duration
instead every 2 hours as was being done earlier.
16 ............ .
D
17. On 2nd December, 1984 before 10.45 PM no deviation was
noticed in the pressure of tank No. 610. Soon thereafter, in the
night shift, some operators notice9 leakage of water and gases and
gases from the MIC structure and they informed the Control
Room. The Control Room operator saw that the pressure had
E
suddenlly gone up in tank No. 610 .. Some staff in the Illrd shift
including S/Shri R.K. Kamparia, C.N. Sen and Saumen Dey check-
ed the pressure indicator on ·the tank E 610 and found that the
pressure had gone out of range. The factory staff tried to control
the situation but they failed. Even tank E 619 which had to be kept
empty for emergency transfers was found to contain MIC and F
therefore when the reaction started, transfer thereto from tank 610
was not possible. The staff on duty immediately informed senior
officials of UCIL at Bhopal about the escape of MIC. During all
these developments and even thereafter the Union Carbide offi-
cials at Bhopal did not give any information to the residents or any G
local authority about the serious dangers to which the pf. Jple were
exposed and regarding which the said officials had full knowledge.
On the other hand, what was initially mentioned was ammonia gas
had escaped."
Thereafter are listed the findings of the Scientific Team made by Dr. H
310 SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.
A Vardarajan indicating the causes that had resulted in the toxic gas leakage
causing its heavy toll. In para 20 of the chargesheet the following findings
of the investigation conducted by the C.B.I. have been noted :
"20. The investigation conducted by the C.B.I. has proved the
following aspects :
B
(i) MIC is a highly dangerous and toxic poison.
(ii) Storing huge quantity of MIC in large tanks was undesirable
and dangerous as the capacity and actual production in the Sevin
C plant did not require such a huge quantity to be stored. Only
adequate quantity of MIC should have been stored, that too in
small separate stainless steel drums. ·
(iii) The VGS that had been provided in the design was capable
of neutralising only 13 tonnes of MIC per hour and proved to be
D totally inadequate to neutralise the large quantities of MIC that
escaped from tank No. E 610. When the two tanks (610 and 611)
themselves had been designed for storing a total of about 90 tonnes
of MIC, proportionately large capacity VGS should have been
furnished in the design and erected rather than VGS that was
E actually provided.
(iv) Due to the design defect, there was back flow of alkali solution
from the VGS to the tanks which had been drained in the past by
the staff of UCIL. Infact, even after the incident, such draining
was done from the PVH and RVVH lines.
F
(v) Whereas the MIC tanks had to be constantly kept under
pressure using nitrogen, the design permitted the MIC tanks not
being under pressure in certain contingencies.
(vi) The refrigeration system that had been provided was inade-
G quate and inefficient. No alternate stand by system was provided.
(vii) Neither the UCC nor the UCIL took any steps to apprise the
local administration authorities or the local public about the con-
sequences of exposure of MIC or the gases produced by its
H reaction and the medical steps to be taken immediately.
KESHUB MAHINDRAv. STATE [S.B. MNMUDAR,J.] 311
21. Apart from these design defects, the further lapses that were A
committed were :
(a) Invariable storing MIC in the tanks which was much more than
the 50% capacity of the tanks which had been prescribed.
(b) Not taking any adequate remedial action to prevent back flow B
of solution from VGS into the RVVH and PVH lines. This alkali
solution/water, therefore, used to be drained.
(c) Not maintaining the temperature of the MIC tanks at the
preferred temperature of 0 degree celsius but at ambient tempera-
tures which were much higher. c
( d) Putting a slip blind in the PVH line and connecting the PVH
line with a jumper line to the RVVH line.
(e) Not taking any immediate remedial action when tank No. E D
610 did not maintain pressure from 22nd October, 1984 onwards.
(t) When the gas escaped in such large quantities, not setting out
an immediate alarm to warn the public and publicise the medical
treatment that had to be given immediately."
E
It was also recited that if these lapses had not occurred, still the incident
would have taken place due to the basic defects in the design supplied by
the UCC whose experts supervised the erection and commissioning of the
plant itself. The lapses only helped to aggravate the consequences of the
incident. Thereafter referring to the indications obtainable from the
evidence collected during the investigation regarding the knowledge of the F
accused about the defective functioning of the plant the following pertinent
recitals are found in paragraph 23 and 24 of the chargesheet :
"23. The evidence collected during the investigation proves that the
accused persons had the knowledge that by the various acts of
commission and omission in the design and running of the MIC G
based plant, death and injury of various degrees could be caused
to a large number of human beings and animals. All the accused
persons joined in such acts of omission and commission with such
common knowledge. This resulted in the incident on the night of
2nd/3rd December, 1984 which caused the death immediately and H
312 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A till date of about 2850 human beings and about 3000 animals. The
number of affected persons is more than 5,00,000. The ailments
damaged respirator tract function, gastro intestinal functions, mas-
cular weakness, forgetfulness etc.
24. The investigation has established that S/Shri Warren Anderson,
B then Chairman, Union Carbide Corporation, USA: Keshub
Mahindra, then Chairman, UCIL Bombay; Vijay Gokhle, then
Managing Director and presently Chairman-cum-Managing Direc-
tor, UCIL, Bombay; Kishore Kamdar, then Vice President In-
charge, AP. Division, UCIL, Bombay; J. Mukund, then Works
c Manager, AP. Division, UCIL, Bhopal, Dr. R.B. Roy Choudhary,
then Asstt. Works Manager, AP. Division, UCIL, Bhopal, S.P.
Choudhary, then Production Manager, AP. Division, UCIL,
Bhopal; K.V. Setty, Plant Superintendent, AP. Division, Bhopal;
S.I. Qureshi, Production Assistant, AP. Division, UCIL, Bhopal;
D the Union Carbide Corporation. U.S.A.; Union Carbide Eastern
Inc. Hongkong and Union Carbide India Limited, Calcutta have
committed offences punishable Under Sections 304, 326, 324, 429
IPC r/w Section 35 IPC."
E Along with this chargesheet a detailed abstract was filed supported by
documentary evidence to show how the conclusions reached by the inves-
tigating agency were supported by this documentary evidence. In this
abstract it was recited that in that plant there were no facilities for
collecting MIC produced separately in each shift and the material is
F directly laid into the storage tanks without batchwise analysis. It was also
found that there are no on-line analysers. Similarly, nitrogen from a neigh-
bouring factory is fed directly into the storage tanks, without full inter-
mediate storage and quality determination. Carbon ~teel sections are used
in the connectors to the storage tanks. Copper tubes are used in connectors
to the level instruments of the tank. The system of instruments for alarm
G to indicate sudden increase in temperature are not suited to the conditions
of operation. Only a single refrigeration system for cooling of MIC in two
tanks was installed and it had not been operated for some considerable
time. MIC has the combination of properties of very high reactivity with
minimum contaminants, ready volatility to become gas and very high in-
H halation toxicity. The installed facilities provided for disposal of unstable
K.ESHUBMAHINDRAv.STATE[S.B.MAJMUDAR,J.j 313
liquid MIC in alkali or for the neutralisation of gaseous emissions from A
violent reaction, on examination are found to be not capable of meeting
the objectives of such disposal in a very short time of two hours. The
abstract also recited that the ingress of about 500 kg. of water alone, was
not the sole cause of the escape of a huge quantity of toxic gas. In this
connection the following averments found in the abstract were relied upon
B
by the prosecution. :
"The ingress of about 500 kg. of water alone, without metallic
contaminants, would have led to a reaction with three to four
tonnes of MIC and gradual rise in temperature to 70 degree celsius,
below the boiling point of MIC at the safety valve pressure. The C
very rapid explosive rise in temperature and pressure in the tank
610, implies conditions for a run-away trimerisation reaction al-
ready existed. Ingress of water and reaction with MIC would
generate carbondioxide evolution and cause mixing. The storage
tank conditions would then equal those in a well mixed reactor, D
supplied with heat. Once initiated, the trimerisation reaction had
features of auto-catalytic and auto- thermal reactions and tempera-
tures increased rapidly to 250 degree celsius. The relief valve
design could not permit free flow of large quantities of gases at
the level at which they were generated and therefore further
reactions continued. E
The presence of sodium at levels of 50 to 90 ppm in the samples
from residues of tank 610 indicates ingress of some alkali, possibly
derived from the Vent Gas Scrubb~r Accumulator. It is known that
the tank 610 could not be pressured with nitrogen at any time after F
22 October, 1984. The contents of tank 610 were virtually at
atmospheric pressure from that date providing opportunities for
entry of metal contaminants. From a perusal of the reports of the
events of the night cf 2/3 December, 1984, it appears during the
cleaning of choked filters with water in the Relief Valve Vent G
Header, such water perhaps mixed with alkali from Vent Gas
Scrubber Accumulator, could have entered the non pressurised
tank and may have carried some metallic contaminants from the
carbon steel portions of header pipelines. The rapid rise in
temperature necessitates onset of metal catalysed polymerisation
and could not result from water alone. The presence of H
314 SUPREME COURT REPORTS (1996] SUPP.6S.C.R.
A choloroform has no influence whatsoever in initiating or accelerat-
ing the run-away reactions. The quantum of leakage is related not ·
to the quantum of water but to the amount of MIC stored in a
single container. If 42 tonnes of MIC had been stored in 210
stainless steel drums instead of_ a single tank, leakage by reactions
or spillage would be no more than one fifth of tonne."
B
Reliance was also placed on the brochure for showing that for
manufacture of Sevin, a very volatile and dangerous raw material, MIC had
to be stored in large quantities and that raw material was not properly kept
under cooling conditions and if coming in contact with water or any other
C pollutant had a tendency to create extremely toxic gas which once it
escapes would necessarily create disaster to the human beings and even
cattle which come in its contact. It has to be stated in fairness to learned
senior counsel for the appellants that they also did not challenge the fact
that MIC was a very highly volatile and dangerous material which had to
D be properly kept so that it may not spell disaster once it gets converted
into poisonous gas and if such gas escapes from the factory. However their
only contention was whether there was any prim a f acie evidence to show
that the appellants or any one of them was in any way responsible for this
unfortunate accident, which in their view was an act of God for which no
human being was responsible.
E
The learned Addl. Solicitor General Shri Altaf Ahmed has also
invited our attention to document D-159 a brochure of UCC, USA which
stated that if MIC is contaminated with water it may become violent. He
also invited our attention to D-195 which is a circular giving company
p information about definitions of 'subsidiary and associate companies'. This
was relied upon to show that UCIL was a subsidiary company of UCC,
USA. Additional D-9 was relied upon which was a copy of the application
for grant of industrial licence for manufacture of MIC based pesticides with
foreign collaboration of UCC, USA, to show that UCL authorities were
well aware regarding the ·Iiazardous nature of MIC which they were
G handling in collaboration with UCC, USA and the safety measures which
were required to be undertaken. Letter D-191 dated 26.10.1984 written by
R. Nagarajan of UCEI to Shri K.S. Kamdar was relied upon to show that
Shri Kamdar was requested to give feasibility report for dismantling of the ,
MIC Plant, Bhopal and the shipment thereof abroad and the cost estimate
H involved in such an undertaking. Reply of Shri Kanidar at D-19 dated
K.ESHUBMAHINDRAv.STATE(S.B.MAJMUDAR,J.] 315
29.11.1984 was also relied upon to show the cost estimate prepared for A
dismantling and shipping of the Sevin/MIC Unit from Bhopal. These
documents were relied upon to indicate that by the closing months of 1984
this plant had become useless and had to be scrapped and shifted and that
showed lack of interest of the management and those operating the plant
in the safe working of the plant which was no longer profit making and was B
almost a dead burden to them and this had resulted, according to the
prosecution, in illegal omission on their part in taking necessary safety
measures for containing the hazardous MIC within the confines of factory
premises. D-216 was a statement showing loss to MIC Unit from 1981 to
1984 which showed huge financial loss suffered by the company in running
the said plant. Thereafter the learned Additional Solicitor General placed C
strong reliance on document D-205 which was Operational Safety Survey
Report conducted by team of experts of UCC. This document showed that
a number of deficiencies in the maintenance of MIC Unit were pointed out
by experts as early as in 1982. Ti1e said report is styled as Operational
Safety Survey Co, MIC and SEVIN Units Union Carbide India Limited, D
Bhopal Plant. It is dated 28th July 1982. The covering letter addressed to
Shri J. Mukund accused No. 5, the then Works Manager of the Bhopal
Plant recites that the team was very impressed with the quality of operating
and work procedures developed over the past few years. However it sought
to bring to the attention of the addressee in connection with the equipment
and mechanical deficiencies described in the report and suggested that E
continued efforts in the area of procedures, training and enforcement were
necessary for contributing substantially to the on-going safety efforts at the
Bhopal Plant. It was indicated that there were potentials for release of toxic
materials in the phosgene/MIC unit and storage areas, either due to
equipment failure, operating problems or maintenance problems. There F
were potentials for contaminations, overpressure, or overfilling of the
SEVIN MIC feed tank. At M.2.1. were noted several conditions for opera-
tion of the unit that presented serious potential for sizeable releases of
toxic materials. They were listed us under :
"(a) Leakage of phosgene and choloroform from the PSS feed and G
quench feed filter head assemblies.
(b) Breakage of small lines or connections, either because of
inadequate line strength, installation of long unsupported
nipples, or corrosion. Examples cited included quench pump H
316 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A drain and vent connections, HCI Scrubber pump drains, and
MRS and pyrolyzer tails pump drains and vents. (It should
be noted that several of these lines were originally schedule
10 nickel piping, and have been replaced, for the most part.)
(c) Possible failure of the pyrolyzer calandria vapor line due to
B erosion/corrosion.
(d) Mechanical pump seal failures, caused by improper seal
design (on the Glit pumps,· for instance) or inadequate control
of replacement materials.
c (e) Release of material at unexpected places due to improper
evacuation jet operation or open evacuation drops."
Regarding the operation of MIC Feed Tank at Sevin which was the basic
source of the Bhopal Gas tragedy the Expert Committee Report indicated
D the dismal situation then existing even _in 1982 in paragraph M.4.2. of the
Report as under :
"(a) It appears that it would be possible to contaminate the tank
with material from the vent gas scrubber. Although the ar-
rangement of lines connecting the tank and vent scrubber
E appears to be adequate to prevent back flow of liquid, it
appears possible to back reactive quantities of water vapors
and other gases from the scrubber to the feed tank wheµ it
is depressurized.
(b) Location of the tank inside a room and lack of water spray
F protection facilities create a situation where a toxic and
flammable vapor cloud could be formed and confined without
provision for knockdown or dispersal. There is mechanical
ventilation in the room, b'..lt the same circumstances that could
result in a leak or overfill (power failure, for instance) could
result in the ventilation being inoperative. Also, it appears
G
that a sizeable spill would not be readily dispersed by the
system.
( c) There is some question about the adequacy of the tank relief
valve to relieve a runaway reaction or fire exposure, par-
H ticularly since the tank has been enlarged.
KE.SHUB MAHINDRA v. STATE [S.B. MAJMUDAR, J.) 317
(d) Manual control of filling of the tank, with no instrumentation A
backup, creates a possibility of accidental overfilling."
Even that apart after the Bhopal Gas tragedy as stated earlier a scientific
team of experts headed by Dr. Vardarajan inspected the plant on spot and
tried to find out the reasons for this tragedy. At page 81 of the Report after
listing various defects in the working of the plant especially with reference B
to storage tank and the instrumentation and control system the committee
in paragraph 4.3 of the Report which is D-164 on the record of the Trial
Court observed as under :
"MIC is kept under a pressure of nitrogen which is supplied by a C
carbon steel header common to all the storage tanks. There is a
strainer in the nitrogen line. Subsequent to the strainer the pipe is
of carbon steel and leads to make-up DMV which also has as body
of carbon steel. Similarly, the blowdown DMV is also of carbon
steel body. These carbon steel parts may be exposed to MIC
- vapours and get corroded, providing a source of contaminant D
which can enter the MIC storage tank."
At paragraph 4.4 dealing with 'Instrumentation°and Control System' it was
observed in the Report of the Vardarajan Committee as under:
"4.4. Instrumentation and Control System : E
The pressure in the MIC tank increases rapidly if MIC is con-
taminated with water. There is no high pressure alarm to alert the
operator about the build-up of pressure.
There is a graphite rupture disc between the tank and the safety F
valve. This graphite rupture disc may break because of pressure surges
even under normal conditions. !here is no provision for an alarm to
bring such a breakage of rupture disc to the attention of the operator.
For the storage of a lethal chemical such as MIC, two instru-
ments in parallel (one for controVindication and another for alarm) G
are normally provided. No such provision is made. For example,
quite often the level readings have not been recorded, reportedly
because the level system used to be out of order very often due to
choking problems. In fact, after the event, since the only level
monitoring system provided for tank 611 was not functioning, it
was not possible to ascertain the exact quantity of MIC in that H
318 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A tank. An additional level measuring system would have helped in
such a situation.
Ingress of contaminants or water can start a reaction with MIC
which begin slowly and produce a rise in temperature of the tank
contents. However, the range of the temperature transmitter
B provided was only -25 degree celsius to + 25 degree celsius, with
a high alarm setting at + 11 degree celsius. The contents of the
tank were being stored at ambient temperature, which varies
approximately from + 15 degree celsius to + 40 degree celsius at
Bhopal. The temperature of MIC in the storage tanks for most part
of the year was higher than the high temperature alaram setting. i.e.
c + 11 degree celsius. Indeed the temperature of material in the tank
was higher than the maximum of the range of the temperature
transmitter, i.e. + 25 decree celsius. In such circumstances the actual
temperature was not known and the transmitter was of no value.
Further, provision of "rate of rise in temperature" alarm would have
D invited the operator's attention to the start of such a re.action. No
such provision was made."
In connection with refrigeration the Committee observed in paragraph 4.5
of the Report as under :
E 4.5 Reftigeration :
There is only one common compressor and chiller system for
all the three MIC storage tanks. For such a hazardous material as
MIC, where maintaining it at a low temperature is considered very
important, a spare compressor and chiller system would have
F ensured proper chilling even when the main compressor and chiller
system is under repairs or maintenance. This provision of spare
compressor and chiller has not been made."
At paragraph 5 of the Report is found an analysis of the events which led to
G the disaster out of the gas escape on that fateful night and the summary of the
conclusion is found in the last sub-paragraph of para 5. It reads as under :
"In retrospect, it appears the factors that led to the toxic gas
leakage and its heavy toll existed in the unique properties of very
high reactivity, volatility and inhalation toxicity of MI<;. The need-
H less storage of large quantities of, the material in very large size
KESHUBMAHINDRAv.STATE[S.B.MATMUDAR,J.) 319
containers for inordinately long periods as well as insufficient A
caution in design, in choice of materials of construction and in
provision of measuring and alarm instruments, together with the
inadequate controls on systems of storage and on quality of stored
materials as well as lack of necessary facilities for quick effective
disposal of material exhibiting instability, led to the accident. These
factors contributed to guidelines and practices in operations and B
maintenance. Thus the combination of conditions for the accident
were inherent and extant. A small input of integrated scientific
analysis of the chemistry, design and controls relevant to the
manufacture would have had an enormously beneficial influence
in altering this combination of conditions, and in avoiding or C
lessening considerably the extent of damage of December, 1984 at
Bhopal."
In addition to the aforesaid documentary evidence the learned Additional
Solicitor General also relied upon D-157 being Memorandum of Associa-
tion and Articles of Association of Mis Ever Ready Company (India) D
Private Limited subsequently changed to M/s Union Carbide India Limited
showing accused No. 2 Keshub Mahindra as the Chairman. Various annual
reports were pressed in service to show how accused No. 2 Keshub
Mahindra presided over the meetings and how accused No. 3, V.P. Gok-
hale worked as whole-time Director. This was relied upon to show that E
these accused even though stationed at Bombay shared the criminal
knowledge of the other personnel of the company who were actually
handling the Bhopal plant being accused Nos. 5 to 9. It was submitted
relying on aforesaid material and also the statements of Arjun Singh,
Mohan Singh and Ram Lal and other statements of persons working in the
plant which were recorded during investigation that all the accused had F
criminal knowledge regarding the defective working of the plant at Bhopal
and as the Plant was to be dismantled and shifted out of India the powers
that monitored the plant were no longer interested in its safe keeping and
by their illegal omissions to take appropriate steps for safe working of the
plant and for the safe keeping of such dangerous material like MIC which G
they were handling at Bhopal, they were rightly charged for the concerned
offences by the learned Trial Judge and that the High Court was right in
refusing to interfere with the framing of these charges. In this connection
it was pointed that as the material showed no transfer of MIC from the
strorage tanks to the production line could take place since November 22,
1984 due to the defective system. Still no remedial measures were taken. H
320 SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.
A That the report of Vardarajan Committee showed that a relief valve vent
header and process valve header were joined together by putting a 'U' type
flexible hose jumber line. Therefore, according to him, this resulted in back
flow of alkalin solution from the VGS to the storage tanks leading to a
chain of reactions.
B It was next submitted that despite the recommendations in the report
of the operational Safety Survey conducted at Bhopal Plant by experts
from United States during May 1982 and despite various deficiencies of
serious and minor nature being pointed out no remedial steps were taken.
Even during the Safety Survey leakages from MIC plant area h~d been
C noticed. Deficiency in safety valve and absence of fixec water sprayers in
the MIC Plant area had been particularly pointed out. Thus the gas had
leaked from the storage tank due to a chain chemical r~action. That the
material led before the Trial Court at the stage of framing of charge clearly
indicated that. there was possibility of ingress of water and other con-
taminants from the RVVH or during cleaning of the valve due to rupturing
D the disc valve which had resulted into this grim tragedy. It was next
contended that the material led by the prosecution at this stage at least
prima f acie showed that all the accused were fully responsible for t1:te
conduct of the plant and they shared the criminal knowledge about the acts
of commission and omission on the part of those of the accused who were
E actually handling the plant and supeivising its working on that fateful night
at Bhopal. That accused R. Choudhary, J. Mukund, S.P. Choudhary, K.V.
Shetty and S.I. Qureshi who were actively associated with the working of
the plant at Bhopal were directly concerned with the incident as they were
in full knowledge of the deficiencies in the plant. Similarly accused Keshub,
Mahindra, V.P. Gokhale and Kishore Kamdar too had full knowledge of
F the defects in the plant at Bhopal and therefore, they also shared the
criminal liability based on criminal knowledge about the acts of commission
and omission in connection with the operation of the said plant at Bhopal.
That all the accused had full knowledge of the hazardous nature of the
MIC manufactured as an intermediate product in Bhopal plant, defects in
the design of the plant lack of safety measures, but still they had taken to
G precautionary steps to avoid this unfortunate accident.
Learned senior counsel for the appellant-accused on the other hand
submitted that even if taking the material available on record at this stage
on its face value the short question is whether any charge could have been
H framed against the accused under Section 304 Part 11, IPC with or without
KESHUBMAHINDRAv.STATE[S.B.MATMUDAR,J.] 321
the aid of Section 35, IPC and even for that matter any charges could have A
been framed under Sections 326, 324 or 429 with or without the aid of
Section 35 of IPC. We may at once state that both the learned Sessions
Judge as well as the High Court have taken the view on the aforesaid
material that a plima f acie case has been made out by the prosecution
requiring a~cused to face the aforesaid charges and the trial of the accused B
on these charges cannot be cut short or nipped in the bud in the light of
the aforesaid material which has to be accepted as plima f acie true and
reliable at this preliminary stage of framing of charges.
It, therefore, become necessary for us now to address ourselves on
this moot question. As noted earlier the main charge framed against all C
these accused is under Section 304 Part II, IPC. So far as accused Nos. 2,
3, 4 and 12 are concerned they are also charged with offences under
Sections 326, 324, IPC and 429 IPC read with Section 35 IPC while accused
5 to 9 are, charged substantially with these offences also. We shall first deal
with the charges framed against the concerned accused under the main D
provisions of Section 304 Part II, IPC. A look at Section 304 Part II shows
that the concerned accused can be charged under that provision for an
· offence of culpabl6. homicide not amounting to murder and when being so
charged ifit is alleged that the act to the concerned accused is done with
the knowledge that it is likely to cause death but without any intention to
cause death or to cause such bodily injury as is likely to cause death the E
charge offences would fall under Section 304 Part II. However before any
charge under Section 304 Part II can be framed, the material on record
must at least prima f acie show that the accused is guilty of culpable
homicide and the act allegedly committed by him must amount to culpable
homicide. However, if the material relied upon for framing such a charge F
against the concerned accused falls short of even prim a f acie indicating that
the accused appeared to be guilty of an offence of culpable homicide
Section 304 Part I or Part II would get out of the picture. In this connection
we have to keep in view Section 299 of the Indian Penal Code which defines
culpable homicide. It lays down that, 'whoever causes death by doing an
act with the intention of causing death, or with the intention of causing G
such bodily injury as is likely to cause death, or _with the knowledge that
he is likely by such act to cause death, commits the offence of culpable
homicide'. Consequently the material relied upon by the prosecution for
framing a charge under Section 304 Part II must at least prima f acie
indicate that the accused had done an act which had caused death with at H
322 SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.
A least such a knowledge that he was by such act likely to cause death. The
entire material which the prosecution relied upon before the Trial Court
for framing the charge and to which we have made a detailed reference
earlier, in our view, cannot support such a charge unless it indicates plima
facie that on that fateful night when the plant-was run at Bhopal it was run
B by the concerned accused with the knowledge that such running of the
plant was likely to cause deaths of human beings. 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
C No. 610 could not even plima 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
D it could not be even plima f acie 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. Consequently in our view taking the
E entire material as aforesaid on its face value and assuming it to represent
correct factual position in connection with the operation of the plant at
Bhopal on that fateful night it could not be said that the said material even
plima facie called for framing of a charge against the concerned accused
under Section 304 Part II, IPC on the spacious plea the said act of the
F accused amounted to culpable homicide only because the operation of the
plant on that night ultimately resulted in deaths of number of human beings
and cattle. It is also pertinent to note that when the complaint was original-
ly filed suo motu by the police authorities at Bhopal and the criminal case
was registered at the police station Hanumanganj, Bhopal as case No.
1104/84 it was registered uncle~ Section 304-A of the IPC. We will come to
G that provision a little later. Suffice it to say at this stage that on the entire
material produced by the prosecution in support of the charge it could not
be said even plima f acie that it made the accused liable to face the charge
under Section 304 Part II. In this connection we may refer to a decision of
t~e Calcutta High Court to which our attention was drawn by learned
H senior counsel Shri Rajendra Singh for the appellants. In the case of Adam
KESHUB MAHINDRA v. STATE [S.B. MATMUDAR, J. J 323
Ali Taluqdar and Ors. v. King-Empem1; AIR (1927) Calcutta 324 a Division A
Bench of the Calcutta High Court made the following pertinent observa-
tions while interpreting Section 304 Part II read with Section 34 IPC :
"Although to constitute an offence under S. 304, Part 2, there must
be no intention of _:causing death or such injury as the offender
knew was likely to cause death, there must still be a common B
intention to do an act with the knowledge that it is likely to cause
death though without the intention of causing death. Each of the
assailants may know that the act, they are jointly doing, is one that
is likely to cause death but have no intention of causing death, yet
they may certainly have the common intention to do that act and
therefore S. 34 can apply to a case under S. 304, Part 2."
c
Once we reach the conclusion that the material produced by the prosecu-
tion before the Trial Court at the stage of framing of charges did not even
prim a f acie connect the accused with any act done with the knowledge that
by that act it~elf deaths of human beings would be caused the accused D
could not be even charged for culpable homicide and consequently there
would be no question of attracting Section 304 Part II against the con-
cerned accused on such material. When on the material produced by the
prosecution no charge could be framed against any of the accused under
Section 304 Part II there would remain no occasion to press in service the
applicability of Section 35, IPC in support of such a charge for those E
accused who were not actually concerned with the running of the plant at
Bhopal, namely, accused Nos. 2, 3, 4 and 12.
We may now turn to the charges framed against the concerned
accused- appellanty under Sections 324 and 326 of the IPC. Section 324 F
deals with 'voluntarily causing hurt by dangerous weapons or means' while
Section 326 deals with 'voluntarily causing grievous hurt by dangerous
weapons or means". Both these sections for their application require
material against the accused on the basis of which it could be said that the
accused had voluntarily caused such hurt or grievous hurt, as the case may
be. Section 321 defines 'voluntarily causing hurt' and provides that, G
'whoever does any act with the intention of thereby causing hurt to any
person, or with the knowledge that he is likely thereby to cause hurt to any
person, and does thereby cause hurt to any person, is said "voluntarily to
cause hurt". Similarly Section 322 deals with 'voluntarily causing grievous
hurt' and lays down that, 'whoever voluntarily causes hurt, if the hurt which H
324 SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.
A he intends to cause or knows himself to be likely to cause is grievous hurt,
and if the hurt which he causes is grievous hurt, is said "voluntarily to cause
grievous hurt". For applicability of these Sections the material relied upon
by the prosecution in support of such charges must show that the con-
cerned accused had committed the act complained of at least with the
B knowledge that by such act he was likely to cause hurt or grievous hurt to
the victim. We have already indicated hereinabove that the material
pressed in service by the prosecution for framing such charges against the
accused falls short of indicating that the act of running the plant on that
fateful night at Bhopal which in its turn involved storing and utilising highly
dangerous and volatile substance like MIC in their storage tank No. 610
C could not even prima facie be said to have been done with the knowledge
that by such act itself simple hurt or giievous hurt was likely to be caused
to any one. Consequently on such material even charge under Sections 324
and 326, IPC could not have been framed against the concerned accused.
Once this conclusion is reached there would also reinain Iio occasion to
2:
D . press in service against the absentee accused Nos. 3, 4 as well as, i2
Section 35 IPC which the prosecution sought to press in service along with
substantive Sections 324 and 326 IPC. In fact on the material as placed by
the prosecution in support of these charges if a charge under Section 304
.Part II cannot be framed then on the parity of reasoning no, charge under
E Sections 324 and 326 could also be framed. That takes us to Section 429,
IPC which deals with 'mischief by killing or maiming cattle, etc., of any
value or any animal of the value of fifty rupees'. For application of this
Section the material must indicate that the concerned accused had com-
mitted mischief in the first place. The term 'mischief is defined by Section
425 IPC. It lays down that, 'whoever, with intent to cause, or knowing that
F he is likely to cause, wrongful loss or damage to the public or to any person,
or in the situation thereof as destroys or diminishes its value or utility, or
affects it injuriously, commits "mischief'". Before the said Section is pressed
in service the material relied upon by the prosecution must indicate even
prim a f acie that the concerned accused by running the plant at Bhopal on
G that fateful night had knowledge that by running such plant they were likely
to cause wrongful loss or damage to the public or to any person. It is
difficult to appreciate how said provision can be pressed in service on the
basis of the material referred to hereinabove which does not whisper or
even prima facie indicate how by running such a plant wherein highly
H dangerous and volatile substance like MIC was stored in tank No. 610 the
KESHUBMAHINDRAv.STATE[S.B.MAJMUDAR,J.) 325
accused had the knowledge that by that act alone they were likely to A
destroy anybody's property or cause wrongful loss or damage to any
person. Once the applicability of Section 425, IPC dealing with 'mischief'
is ruled out on such material there would remain no occasion to invoke
Section 429 which for its applicability requires the prosecution to show in
the first instance any material against the concerned accused indicating the B
commission of mischief by the accused. In our view, therefore, on the
material pressed in service by the prosecution for framing charges against
the accused no charge could have been framed against the concerned
accused either under Section 304 Part II or under Section 324, 326 or 429,
IPC with or without the aid of Section 35, IPC. On these findings of ours
the appeals will be required to be allowed and all these charges will have C
to be quashed.
However this is not the end of the matter. There still remains the
question as to whether any other charge can be framed against the con-
cerned accused for any of the offences under the Indian Penal Code on D
the basis of the very same material relied upon by the prosecution for
framing appropriate charges against the accused. It is true that though
originally the criminal case was registered for an offence under Section
304-A of the IPC the Central Bureau of Investigation which took up the
investigation thought it proper to press in service Section 304 Part II and
Sections 324, 326 and 429 of the IPC. Charges under these Sections have E
been found by us to be unsustainable on the material produced by the
prosecution on record in support of these charges. However that does not
mean that on the material as it stands on record the accused cannot even
plima f acie be alleged to have committed any criminal offence for which
they can be called upon to face the trial and that they should get a clean F
chit and clear walk-over. In our view the prosecution on the material as
aforesaid had made out a plima facie case against the accused for being
tried under Section 304-A of the IPC which reads as under:
"304-A. Causing death by negligence. - Whoever causes the death
of any person by doing any rash or negligent act not amounting to G
culpable homicide shall be punished with imprisonment of either
description for the term which may extend to two years, or fine,
or with both".
On our finding that the material pressed in service by the prosecution does H
326 SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.
A not indicate even prima f acie that the accused were guilty of an offence of
culpable homicide and, therefore, Section 304 Part II was out of picture,
Section 304-A on this very finding can straightaway get attracted at least
p1ima facie. It cannot be disputed that because of the operation of the
defective plant at Bhopal on that fateful night a highly dangerous and
volatile substance like MIC got converted into poisonous gas which snuffed
B
off the lives of thousands of human beings and maimed other thousands
and killed number of ~nimals and that all happened, as seen at least prima
f acie the material led by the prosecution on record, because of rash and
negligent act on the part of the accused who were in-charge of the plant
at Bhopal. Even though, therefore, these acq1sed cannot be charged for
C offences under Section 304 Part II the material led against them by the
prosecution at least prim a f acie showed that lhe accused were guilty of rash
or negligent acts not amounting to culpable homicide and by that act
caused death of large number of persons. We may mention that on the
question whether on this material Section 304-A could be invoked or not,
D learned senior counsel for the appellants as well as learned Addl. Solicitor
General for the respondent-State did address us and, therefore, we can
and should, with a view to avoid multiplicity of proceedings, exercise our
powers under Article 142 of the Constitution and decide whether the
material led by the prosecution can prima f acie support charges under
Section 304-A against concemed accused. In the case of State of Gujarat v.
E Haidarali Kalublzai, [1976] 1 SCC 889 it was laid down by this Court as
under:
"Section 304-A by its own definition totally excludes the ingredients
of Section 299 or Section 300 I.P.C. Doing an act with the intent
- to kill a person or knowledge that doing of an act was likely to
F
cause a person's death are ingredients of the offence of culpable
homicide. When intent or knowledge as described above is the
direct motivating force of the act complained of, Section 304-A
has to make room for the graver and more serious charge of
culpable homicide."
G
< On the facts found in that case it was held that the prosecution evidence
did not make out a case of any wilful or deliberate act on the part of the
accused in order to cause the death of the deceased by driving the truck
in the way he did. Whether the prosecution brings home the charge under
H Section 304- A or not will, of course, have to be decided in the light of the
K.ESHUB MAHINDRAv. STATE [S.B. MAJMUDAR,J.J 327
evidence that may be led in the trial against the accused who is required A
to face the charge under Section 304-A. But for framing such a charge the
material on record must at this stage be assumed to be representing a true
version of the event. For repelling the applicability of Section 304-A,
learned senior counsel for the appellants pressed in service decision in the
case of Ambalal D. Bhatt v. The State of Gujarat, [1972] 3 SCC 525. The
B
following observations in the aforesaid judgment were pressed in service :
"(i) In a prosecution for an offence under Section 304- A of I.P.C.,
the court has to examine whether the alleged act of the accused is
the direct result of a rash and negligent act and that act was the
proximate and efficient cause of the death without intervention of C
other's negligence. The mere fact that an accused contravenes
certain rules or regulations in doing of an act does not establish
an offence under Section 304-A, l.P.C.
The act causing deaths must be the causa causans; it is not D
enough that it may have been the causa sine qua. non. The court
has to determine whether the act of the accused is the causa
causans or has there been a cause intervening which has broken
the chain of causation so as to make the act of the accused, though
a negligent one, not the immediate cause or whether it amounts
to an act or gross negligence or recklessly negligent conduct. The E
fact that twelve lives have been lost, however shocking and regret-
table it may be, ought not to allow the mind boggle while appreciat-
ing the evidence."
It was submitted that the material must prima f acie show that the alleged F
act of the accused was the direct result of rash and negligent act. In this
connection we .must observe that the material led by the prosecution to
which we have made a detailed reference earlier prima f acie shows that
there were not only structural defects but even operational defects in the
working of the plant on that fateful night which resulted into this grim G
tragedy. Consequently a prima facie case is made out for framing charges
under Section 304-A against the concerned accused. If ultimately on the
evidence led by the prosecution and even by the defence if at all they
choose to led evidence in rebuttal, it is found that that act complained of
was not the proximate and efficient cause of death and intervention of
other's negligence had taken place the accused may get acquittal after H
328 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A facing the full fledged trial. But that stage has yet not come. It would,
therefore, be premature at this stage to say as to. what would be the ultimate
result of the trial once the accused are made to face such a trial. But it
cannot be said that on the material led by the prosecution at this stage even
the case of culpable negligence of rashness is also not made out at least
B plima f acie against the concerned accused and the trial should be nipped
in the bud even for such a charge. Our attention was also invited by learned
senior counsel for the appellants in support of their contention that the
material on· record does not plima f acie make out a case for framing a
charge under Section 304-A, IPC. The following observations of Hegde, J.
speaking for a Bench of three learned Judges in the case of Suleman
C Rehiman Mulani & Ors. v. State of Maharashtra, [1968] 2 SCR 515, were
pressed in service:
"The requirements of s. 304-A I.P.C. are that the death of any
person must have been caused by the accused by doing any rash
or negligent act. In other words, there must be proof that the rash
D or negligent act of the accused was the proximate cause of the
death. There must be direct nexus between the death of a person
and the rash or negligent act of the accused. There is no presump-
tion in law that a person who possesses only a learner's licence or
possesses no licence at all does not know driving. For various
E reasons, not excluding sheer indifference, he might not have taken
a regular licence. The prosecution evidence that first appellant had
driven the jeep to various places on the day previous to the
occurrence was a· proof of the fact that he knew driving."
Even that decision cannot be of any avail to the appellants for the simple
F reason that question of proof of rashness and negligence will arise at the
stage of trial after full evidence is led by the prosecution and even by the
accused side if at all they choose to do so and in the light of that evidence
the question would arise whether the charge as framed is made out by the
prosecution against the concerned accused. At present we are concerned
G with the short question as to whether on the material led by the prosecution
at this stage a case is made out for framing under Section 304-A, IPC or
not? It cannot be gainsaid that the voluminous evidence led by th,e prosecu-
tion in this connection at least prima facie shows that the concerned
accused who operated the plant on that fateful night at Bhopal could be
alleged to be at least guilty of rash and negligent act in the way this highly
H volatile substance MIC was handled by them and which ultimately escaped
KESHUBMAHINDRAv.STATE[S.B.MNMUDAR,J.] 329
in vapourous form and extinguished the lives of thousands of human beings A
and animals apart from causing serious bodily injuries to thousands of
others. Our attention in this connection was also invited by learned senior
counsel for the appellants to the case of Kurban Hussein Mohammeda/i
Rangwa/la v. State of Maharashtra, (1965] 2 SCR 622. It was submitted
relying on the said deCision that for punishing an accused under Sections
304-A and 285 of the IPC it was required to be shown that because of the
B
alleged rash and negligent act death must result and death must be the
direct and proximate result. It that case on evidence led at the full fledged
trial the question arose whether the charge was made out. All these
judgments on which learned senior counsel for the appellants placed
reliance, therefore, could have applicability for judging the culpability of C
the concerned accused after they face the trial and entire evidence is led
in the case against them. However for framing charge under Section 304-A
on the aforesaid material it cannot be said that the said material even prima
f acie did not point out the culpability of the concerned accused in running
a defective plant having number of operational defects and in being prima
f acie guilty of illegal omissions to take safety measures in running such a D
limping plant on that fateful night which resulted into this colossal tragedy.
The aforesaid conclusion of ours, therefore, would make out a prim a f acie
case against accused nos. ~' 6, 7, 8 and 9 who were in actual charge of
running of the Bhopal plant and would require them to face the trial fr :
charge under Section 304-A of the IPC. E
So far as the remaining accused nos. 2, 3, 4 and 12 are concerned
the material produced on record clearly indicates at least prima f acie 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 F
IPC would also prima f acie get attracted against them. A mere look at that
Section shows that if the act alleged against these accused becomes
criminal on account of their sharing c'Jmmon knowledge about the defec-
tive running of plant at Bhopal by the remaining accused who represented
them on spot and who had to carry out their directions from them and who G
were otherwise required to supervise their activity, Section 35 of the IPC
could at least prim a f acie be invoked against accused 2, 3, 4 and 12 to be
read with Section 304-A, IPC. Consequently we find that on the material
led by the prosecution against the accused at this stage a prima f acie case
was made out by the prosecution for framing charges against accused Nos.
H
330 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A 2, 3, 4 and 12 under Section 304-A read with Section 35 IPC while
substantive charges under Section 304-A could be framed against accused
Nos. 5, 6, 7, 8 and 9. In this connection Shri Desai, learned senior counsel
for the appellants vehemently submitted that the High Court was in error
in invoking Section 35 against the concerned accused. Placing reliance on
B Esso Standard Inc. v. Udltaram Bhagwandas Japanwalla, [1975] 45 Comp.
Cas. 16 he submitted that, that was a case in which for the individual acts
of the directors of the company the company was sought to be made liable
by invoking the principle of corporate liability based on the doctrine of
directing mind and will. Shri Desai submitted that this was a converse case
where for the act of the company which is a corporate body being accused
C No. 12 the individual directors are sought to be roped in. The aforesaid
contention of Shri Desai cannot be of any avail at this stage for the simple
reason that whether on facts such converse case is made out or not in the
light of aforesaid decision will depend upon the evidence that may be led
at the stage of trial. But this would not rule out framing of appropriate
D charge against the appellants if there is prim a f acie material against them
which in our view has been made available by the prosecution before the
Trial Court for framing such a charge against the concerned accused.
Shri Ashok Desai, learned senior counsel then submitted that the
material led by the prosecution does not even remotely indicate that
E accused no. 2 who was at Bombay could have shared any knowledge with
persons at Bhopal who were actually operating the plant. When from the
documentary evidence produced by the prosecution it isprima facie indi-
cated that the accused at the helm of affairs was in the apex position
enabling him to know the shortcomings of the working of the plant at
· F Bhopal. Whether he actually shared knowledge or not will be a question
of evidence and proof to be resolved at the stage of trial. However from
the material available on record it cannot be said that the prosecution had
not prim a f acie made out a case for attracting Section 35, IPC so far as the
present accused are concerned. However we must add a caution. We must
note that wh~tever we have observed at this stage in connection with the
G material produced by the prosecution for framing charges against the
accused is strictly confined to this limited question. Whether the accused
are found actually guilty of the charges framed against them or not will
strictly depend upon the evidence that may be led at the stage of trial and
the court will have to decide the culpability of the concerned accused, if
H any, strictly confined to the evidence that may be led at the stage of trial.
KESHUBMAHINDRAv.STATE[S.B.MAJMUDAR,J.] 331
Our present observations, therefore, should not be treated to have even A
remotely suggested that in fact the accused are guilty of the offences with
which they are liable to be charged pursuant to our present order. Conse-
quently on the material as produced by the prosecution on record charges
under Section 304-A read with Section 35 IPC can be framed against
accused nos. 2, 3, 4 and 12. We direct the appropriate Trial Court to frame
B
charges as aforesaid against the concerned accused.
However in our view from the material which is produced on record
there is a possibility of considering a further question whether charges
under Sections 336, 337 and 338 of the IPC with or without the aid of
Section 35 can be framed against the concerned accused. They read as C
under:
"336. Act endangering life or personal safety of others. - Whoever
does any act so rashly or negligently as to endanger human life or
the personal safety of others, shall be punished with imprisonment
of either description for a term which may extend to three months, D
or with fine which may extend to two hundred and fifty rupees, or
with both.
337. Causing hurt by act endangering life or personal safety of
others. - Whoever causes hurt to any person by doing any act so E
rashly or negligently as to endanger human life, or the personal
safety of others, shall be punished with imprisonment of either
description for a term which may extend to six months, or with
fine which may extend to five hundred rupees, or with both.
338. Causing grievous hurt by act endangering life or personal F
safety of others. - Whoever causes grievous hurt to any person by
doing any act so rashly or negligently as to endanger human life,
or the personal safety of others, shall be punished with imprison-
ment of either description for a term which may extend to two
years, or with fine which may extend to one thousand rupees, or G
with both."
As none of the parties have addressed us on these aspects we leave
this question for consideration of the learned Trial Judge who may after
hearing the parties decide wht<ther on the material as led by the prosecu-
tion on record at this stage charges, if any, can also be framed under H
332 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.
A Sections 336, 337 and 338 of the IPC with or without the aid of Section 35
of the IPC. We express no opinion on this aspect and leave it open to the
Trial Court to address itself on this question.
As· a result of the aforesaid discussion it is held that on the material
led by the prosecution appropriate charges which are required to be
B framed against the concerned accused are under Section 304-A, IPC so far
as the accused Nos. 5, 6, 7, 8 and 9 concerned while so far as accused nos.
2, 3, 4 and 12 are concerned charges under Section 304-A read with Section
35 IPC will have to be framed. As these offences are triable by the court
of Judicial Magistrate 1st Class, Bhopal the Sessions Case shall be trans-
C ferred to the Court of the Chief Judicial Magistrate, 1st Class, Bhopal who
will proceed with the trial in accordance with law and frame appropriate
charges under Section 304-A with or without the aid of Section 35, as the
case may be, against the concerned accused as indicated hereinabove.
In the result the appeals filed by the concerned accused partially
D succeed to the aforesaid extent. Charges framed against them under Sec-
tions 304 Part 11, 324, 326 and 429, IPC with or without the aid of Section
35, as the case may be, are quashed and set aside. Instead it is directed
that the appropriate Trial Court shall frame charges against these accused
as indicated in the judgment. The appropriate Trial Court to which the
E case will stand transferred is also directed to consider the further question
whether charges should be framed under Sections 336, 337 and 338 of the
IPC with or without taking the aid of Section 35, IPC after hearing the
concerned parties. On that aspect we expri~ss no opinion. Orders accord-
ingly.
v.s.s. Appeal allowed.
I.
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