Case: Keshub Mahindra Vs. State of M.P

the way this highly volatile substance MIC was handled by them and which ultimately escaped in vapourous form and extinguished the lives of thousands of human beings 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 Mohammedali Rangwalla Vs. State of Maharashtra, . It was submitted relying on he said decision that for punishing an accused under Sections 304A and 285 of the IPC it was required to be shown that because of the alleged rash and negligent act death must result and death must be the direct and proximate result. In 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 the concerned accused after they face the trial and entire evidence is led in the case against them. However for framing charge u/s 304A on the aforesaid material it cannot be said that the said material even prima facie did not point out the culpability of the concerned accused in running a defective plant having number of operational defects and in being prima facie guilty of illegal omissions to take safety measures in running such a limping plant on that fateful night which resulted into this colossal tragedy. The aforesaid conclusion of ours, therefore, would make out a prima facie case against accused Nos. 5,6,7,8 and 9 who were in actual charge of running of the Bhopal plant and would require them to face the trial for charge u/s 304A of the IPC. 23. So far as the remaining accused Nos. 2, 3, 4 and 12 are concerned the material produced on record clearly indicates at least prima facie that they being at the helm of affairs have to face this charge for the alleged negligence and rashness of their subordinates who actually operated the plant on that fateful night at Bhopal and for that purpose Section 35 of the IPC would also prima facie get attracted against them. 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 at Bhopal by the remaining accused who represented them on spot and who had to carry out their directions from them and who were otherwise required to supervise their activity, Section 35 of the IPC could at least prima facie be invoked against accused 2, 3, 4 and 12 to be read with Section 304A, IPC. Consequently we find that on the material led by the prosecution against the accused at this stage a prima facie case was made out by the prosecution for framing charges against accused Nos. 2, 3, 4 and 12 u/s 304A read with Section 35 IPC while substantive charges u/s 304A 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 135 against the concerned accused. Placing reliance on Esso Standard Inc. Vs. Udharam Bhagwandas Japanwalla, 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 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 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 charge against the appellants if there is prima facie 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. 24. Shri Ashok Desai, learned senior counsel then submitted that the material led by the prosecution does not even remotely indicate that 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 is prima facie indicated 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 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 prima facie 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 whatever we have observed at this stage in connection with the 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 any, strictly confined to the evidence that may be led at the stage of trial. Our present observations, therefore, should not be treated to have even 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In the case of Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, , 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:It seems well settled 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 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 co accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.It is also well settled that while exercising jurisdiction u/s 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 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.So far as accused Nos. 2, 3, 4 and 15 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 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 culpable homicide not amounting to murder and when being so charged if it is alleged that the act of 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 charged offences would fall u/s 304 Part II. However, before any charge u/s 304 Part II can be framed, the material on record must at least prima facie 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 relief - upon for framing such a charge against the concerned accused falls short of even prima facie 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.Consequently the material relied upon by the prosecution for framing a charge u/s 304 Part II must at least prima facie 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 which the prosecution relied upon before the Trail 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 prima facie that on that fateful night when the plant was run at Bhopal it was run 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 that No. 610 could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause death of human beings. In fairness to prosecution it was not suggested and could not be suggested that the accused had an intention to kill any human being while operating the plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being. Consequently in our view taking 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 prima facie called for framing of a charge against the concerned accused u/s 304 Part II. IPC on the spacious plea that the said act of the 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 originally 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 u/s 304A of the IPC. We will come to 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 prima facie that it made the accused liable to face the charge u/s 304 Part II.Once we reach the conclusion that the material produced by the prosecution before the Trial Court at the stage of framing of charges did not even prima facie connect the accused with any act done with the knowledge that by that act itself deaths of human beings would be caused the accused could not be even charged for culpable homicide and consequently there would be no question of attracting Section 304 Part II against the concerned accused on such material. When on the material produced by the prosecution no charge could be framed against of the accused u/s 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 accused who were not actually concerned with the running of the plant at Bhopal, namely, accused Nos. 2, 3, 4 and 12.Section 324 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 would 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, 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 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 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 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 could not even prima facie be said to have done with the knowledge that by such act itself simple hurt or grievous 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 remain no occasion to press in service against the absentee accused Nos. 2, 3,4 as well as 12 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 u/s 304 Part II cannot be framed then on the parity of reasoning no charge under Sections 324 and 326 could also be framed.On these findings of ours the appeals will be required to be allowed and all these charges will have to be quashed.The term mischief is defined by Section 425 IPC.Before the said Section is pressed in service the material relied upon by the prosecution must indicate even prima facie that the concerned accused by running the plant at Bhopal 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. 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 dangerous and volatile substance like MIC was stored in tank No. 610 the accused had the knowledge that by that act alone they were likely to destroy anybodys 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 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 u/s 304 Part II or u/s 324 326 or 429, IPC with or without the aid of Section 35, IPC.It is true that though originally the criminal case was registered for an offence u/s 304A 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 or 429 of the IPC. Charges under these Sections have 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 prima facie 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. In our view the prosecution on the material as aforesaid had made out a prima facie case against the accused for being tried u/s 304A of the IPCIt is true that though originally the criminal case was registered for an offence u/s 304A 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 or 429 of the IPC. Charges under these Sections have 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 prima facie 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. In our view the prosecution on the material as aforesaid had made out a prima facie case against the accused for being tried u/s 304A of the IPCOn our finding that the material pressed in service by the prosecution does not indicate even prima facie that the accused were guilty of an offence of culpable homicide and, therefore, Section 304 Part II was out of picture. Section 304A on this very finding can straightaway get attracted at least prima 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 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 prima facie 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 accused cannot be charged for offences u/s 304 Part II the material led against them by the prosecution at least prima facie showed 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 persons. We may mention that on the question whether on this material Section 304A (sec) be invoked or not, 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 facie support charges u/s 304A against concerned accused.Whether the prosecution brings home the charge u/s 304A or not will, of course, have to be decided in the light of the evidence that may be led in the trial against the accused who is required to face the charge u/s 304A. 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.In this connection we must observe that the material led by the prosecution to which we have made a detailed reference earlier prima facie 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. Consequently a prima facie case is made out for framing charges u/s 304A against the concerned accused. If ultimately on the evidence led by the prosecution and even by the defence if at all they choose to lead evidence in rebuttal, it is found that the act complained of was not the proximate and efficient cause of death and intervention of others negligence had taken place the accused may get acquittal after 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 face of culpable negligence or rashness is also not made out at least prima facie 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 prima facie make out a case for framing a charge u/s 304A. IPC. The following observations of Hegde, J. speaking for a Bench of three learned Judges in the case of Suleman Rehiman Mulani and Another Vs. State of Maharashtra, were pressed in service:The requirements of Section 304A 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 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 presumption in law that a person who possesses only a learners licence or possesses no licence at all does not know driving. For various 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 know driving.Even that decision cannot be of any avail to the appellants for the simple 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.It cannot be gainsaid that the voluminous evidence led by the prosecution 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 volatile substance MIC was handled by them and which ultimately escaped in vapourous form and extinguished the lives of thousands of human beings and animals apart from causing serious bodily injuries to thousands of others.All these judgments on which learned senior counsel for the appellants placed reliance, therefore, could have applicability for judging the culpability of the concerned accused after they face the trial and entire evidence is led in the case against them. However for framing charge u/s 304A on the aforesaid material it cannot be said that the said material even prima facie did not point out the culpability of the concerned accused in running a defective plant having number of operational defects and in being prima facie guilty of illegal omissions to take safety measures in running such a limping plant on that fateful night which resulted into this colossal tragedy. The aforesaid conclusion of ours, therefore, would make out a prima facie case against accused Nos. 5,6,7,8 and 9 who were in actual charge of running of the Bhopal plant and would require them to face the trial for charge u/s 304A of the IPC.23. So far as the remaining accused Nos. 2, 3, 4 and 12 are concerned the material produced on record clearly indicates at least prima facie that they being at the helm of affairs have to face this charge for the alleged negligence and rashness of their subordinates who actually operated the plant on that fateful night at Bhopal and for that purpose Section 35 of the IPC would also prima facie get attracted against them. 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 at Bhopal by the remaining accused who represented them on spot and who had to carry out their directions from them and who were otherwise required to supervise their activity, Section 35 of the IPC could at least prima facie be invoked against accused 2, 3, 4 and 12 to be read with Section 304A, IPC. Consequently we find that on the material led by the prosecution against the accused at this stage a prima facie case was made out by the prosecution for framing charges against accused Nos. 2, 3, 4 and 12 u/s 304A read with Section 35 IPC while substantive charges u/s 304A 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 135 against the concerned accused. Placing reliance on Esso Standard Inc. Vs. Udharam Bhagwandas Japanwalla, 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 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 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 charge against the appellants if there is prima facie 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..When from the documentary evidence produced by the prosecution it is prima facie indicated 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 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 prima facie 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 whatever we have observed at this stage in connection with the 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 any, strictly confined to the evidence that may be led at the stage of trial. Our present observations, therefore, should not be treated to have even 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.26. As one 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 whether on the material as led by the prosecution on record at this stage charges, if any, can also be framed under 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.