CASE NO.:
Appeal (crl.) 1672 of 1996
PETITIONER:
KESHUB MAHINDRA
RESPONDENT:
STATE OF M.P,
DATE OF JUDGMENT: 13/09/1996
BENCH:
AM. AHMADI, CJI & S.B. MAJMUDAR
JUDGMENT:
JUDGMENT
1996 Supp.(6) SCR 287
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 Additional Sessions
Judge, Bhopal in Sessions Trial No. 257 of 1992 whereby the learned
Sessions Judge framed charges against the appellants in appeals arising out
of S.L.P. (Crl.) Nos. 3900 of 1995, 3901 of 1995 and 3953 of 1995 under
Sections 304 Part II, 326, 324 and 429 read with Section 35 of the Indian
Penal Code (for short 'IPC ') and framed charges under Sections 304 Part
II; 326, 324 and 309 against the appellants in appeal arising out of S.L.P.
(Crl.) No. 3932 of 1995. They had also challenged the orders of the High
Court of Madhya Pradesh at Jabalpur in Criminal Revision Application Nos.
237/93,238/93, 312/93 and 311/93 whereby these charges were sustained.
Appeal arising out of S.L.P. (Crl.) No. 3900 of 1995 is moved by Shri
Keshub Mahindra who is accused No. 2 before the Sessions Court. Appeal
arising out of S.L.P. (Crl.) No. 3901 of 1995 is moved by Shri V.P. Gokhale
who is accused No. 3 in the same case. Appeal arising out of S.L.P. (Crl.)
No. 3953 of 1995 is moved by Kishore Kamdar who is accused No. 4 in the
said case while the last appeal arising out of S.L.P. (Crl.) No. 3932 of
1995 is moved by six accused being Shri J. Mukund accused No. 5, Dr. R.B.
Roy Choudhary accused No. 6, Shri S.P. 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 Jabalpur under Sections 397 and 482 of the
Code of Criminal 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.
Introdactory Facts A grim tragedy of unprecedented nature occurred at
Bhopal on the night intervening 2nd December 1984 and 3rd December 1984
wherein between 0030 hours and 0045 hours a highly dangerous and toxic gas
called MIC escaped from tank No. E610 from the Bhopal factory belonging to
accused No. 12 UCIL. As a result of this leakage 3828 human beings lost
their lives while permanent injuries were caused to 18922 human beings,
temporary disablement was suffered by 7172 human beings, temporary
disablement caused by permanent injury was suffered by 1313 persons while
permanent partial disablement was suffered by 2680 persons, While 40 human
beings suffered from permanent total disablement and the death toll of
animals amounted to 2544. This ghastly tragedy has come to be known as
'Bhopal Gas Tragedy'. After the gas leakage Criminal Case No. 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 accused No. 10, Accused
No. 2 Keshub Mahindra was the Chairman of UCIL which in its turn Was shown
as accused No. 12. Accused No. 3 V.P. Gokhale was shown as an accused in
his capacity as Managing Director of UCIL. Kishore Kamdar who was the Vice
President and Incharge of A.P. Division of UCIL was shown as accused No. 4.
Shri J. Mukund the Works Manager of the Bhopal Plant was joined as accused
No. 5. Dr. R.B. Roy Choudhary who was Assistant Works Manager, A.P.
Division, UCIL at Bhopal was joined as accused No. 6. Accused No, 7. was
Shri S.P. 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. 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.
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 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 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 arid arising out of the Bhopal Gas
Disaster were quashed by this Court. As a result the proceedings in the
present case 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 30lh April 1992. On the case being committed to the
Court of 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 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 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
:
"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/K.V. Setty and S.I.
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 name of MIC to escape from tank No. 6l0 of A.P. 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 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 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.
Thirdly: 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 (at defined Under Sec. 39 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 See. 35 IPC and within the
cognizance of the Court of Sessions.
Fourthly: That on the above date and at the above place the above 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 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. 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/K.V, Shetty and S.I.
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 name of MIC to escape from tank No, 610 of A.P. Division Plant of
UCIL knowing that this common knowledge with them did not do any thing to
avoid escape of gas thus you thereby committed on each count an offence
punishable U/S 304(II) R/W Sec. 35 of the I.P.C. and 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 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
committed on each count an offence punishable U/S 326 R/W Sec, 35 IPC and
within the cognizance of the Court of Sessions,
Thirdly : 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 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.
Fourthly ::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 common knowledge with them did not do
any thing to avoid the said escape of gas, thus you thereby committed on
each count art 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 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 committed on each count an offence punishable U/S
304(II) I.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 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.
Thirdly: 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 IPC) caused hurts to 8485 or
more human beings and thereby committed on each count an offence punishable
U/S. 324 I.P.C. and within the cognizance of the Court of Sessions,
Fourthly; That on the above date and at the place by allowing to 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."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.1. Qureshi while
UCIL, Calcutta accused No, 12 had to face the following charges :
"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/K.V, Shetty and S.1
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 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 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(II)
R/W Sec. 35 of the I.P.C. and 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 or 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 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 See, 35 IPC and
within the cognizance of Court of Sessions.
Thirdly : 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 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.
Fourthly : 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 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
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 Madhya Pradesh by
common judgment in three Criminal Revising Applications 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 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 Asok Desai appearing for accused No. 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 facie 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 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
Section 326 IPC for voluntarily causing grievous hurt or for that matter
for the offence under Section 324 for voluntarily 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 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 senior counsel that even lesser charge
under Section 304-A, IPC also could riot 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 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.
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 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 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 tie truth or
falsity of the allegations with which the prosecution has charged them.
That at this stage only enquiry into the prima facie nature of the
allegations supporting these charges has to be made and if there is any
material to prima facie indicate that (he concerned accused were liable to
be prosecuted for the charges with which they are indicated the trial is
required to .be permitted to proceed further and should hot 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 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 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
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 presuming that the accused has committed an offence, then
subject to the procedure laid down by sub-sections (a) and (b) of the said
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. Ahmadl, 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 to accept all
that 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 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 prima facie appraisal of
the allegations made in the complaint and 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, Sharma,
(1996) 2 SCALE 356. Relying on earlier decisions of this Court the Bench in
the aforesaid case made the following 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 :
'It is thus settled law that the exercise of inherent power of the High
Court is an exceptional one Great care should be taken by the High Court
before embarking to scrutinise the FIR/charge-sheet/complaint. In deciding
whether the case is rarest of rare eases 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 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 mandatory and its effect of non-compliance. It would be done
after the trial is concluded. The Court has to prima facie 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 evidence and proceed further with the trial. If it reaches
a conclusion that no cognisable offence is made out no further act could be
done except to quash the charge sheet. But only in exceptional cases, i.e.
in rarest of rare cases of malla 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 court may embark upon the consideration thereof and exer-cise the
power.
In Stale of Bihar v. Rajendra Agrawalla, ;(:CrI A.- No, 66 of 1996) 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 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 Other materials collected during investigation
taken at their face value, do not 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 to the conclusion that no prima facie case
is made out.'"
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
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
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
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 pesticide Sevin was
manufactured was Methyl Isocynate (CII3N = C-O) which was also being
manufactured in the same factory and was being stored in underground tanks.
The factory is presently not functioning.
2, On the night of 2nd/3rd December, 1984 from about 0034 to 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.
t
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 under Section 304A IPC. There Was no
information available at that stage from anyone in the factory. Based on
enquiries made by him daring the course of the day, five employees of the
factory (A5 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 bail the same day by
the I.O. 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 A5 to A9 in police custody from the Madhya
Pradesh Police.
4. Investigation has revealed that the Union Carbide Corporation 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 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. 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 exercising strict financial,
administrative and technical control on the Union Carbide India Limited.
Thus, all major decisions were taken under 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 investigation of this case was dependent on highly scientific and
technical evaluation of the events which led to the escape of 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.I.R. to study all the scientific and technical aspects and submit
their report. Dr. M. Sriram, Chief Research and Development Manager,
Hindustan 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.
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 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 into an
agreement entitled Foreign Collaboration Agreement according 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, know how and safety measures for the production, storage and
use of MIC which ought to have been an improvement on the factory of UCG 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 control of the experts of UCC. The Indians
in this plant Were only working under their directions.
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.
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 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 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 would cause chest pain, coughing, choking and even pulmonary edema. On
thermal composition, MIC would produce hydrogen 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 dangerous. In particular, iron or steel, aluminium, zinc or galvanized
iron, copper or tin or their alloys 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.
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 occasions of emergency. MIC
has to be stored in the tanks under pressure by using nitrogen which 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 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 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
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 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 (o the Sevin plant through stainless steel pipe lines. MIC is
kept under pressure by nitrogen which is supplied by a 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
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 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 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
pressure of the MIC tank is shown by a pressure indicator. When the
pressure in the tank exceeded 40 psig, a rupture disc (RD) leading to a
safety relief Valve (SRV) had to break and the said SRV in the RWH line
open automatically to allow the escaping gas to travel through the RWH line
to the VGS for neutralization;
13. Investigation has shown that the PVH and RWH pipe lines as well as the
valves therein were of carbon steel. Besides, on 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 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
tank being under nearly atmospheric pressure, free passage was available
for the entry of back flow of the solution from the. VGS 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
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 ho 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.
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 noticed 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 suddenlly gone up in tank: No. 610. Some staff in the
lllrd 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 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
local authority about the serious dangers to which the people 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.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 :
(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 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 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 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.
(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 inadequate 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 consequences of
exposure of MIC or the gases produced by its reaction and the medical steps
to be taken immediately.
21. Apart from these design defects, the further lapses that were 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 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,
(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 610 did not
maintain pressure from 22nd October, 1984 onwards,
:(f) 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;"
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 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 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 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, 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, A.P. Division, UCIL, Bombay; J. Mukund, then Works Manager, A.P.
Division, UCIL, Bhopal, Dr. R.B. Roy Choudhary, then Asstt. Works Manager,
A.P. Division, UCIL, Bhopal, S.P, Choudhary, then Production Manager, A.P,
Division, UCIL, Bhopal; K.V. Setty, Plant Superintendent, A.P. Division,
Bhopal; S.I, Qureshi, Production Assistant, A.P. Division, UCIL, Bhopal;
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"
Along with this chargesheet a detailed abstract was filed supported by
documentary evidence to show how the conclusions reached by the
investigating 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
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 steel 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 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-halation toxicity. The installed facilities provided for
disposal of unstable liquid MIC in alkali or for the neutralisation of
gaseous emissions from 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. hi this connection the following averments found in the abstract
were relied upon 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 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, Supplied
with heat. Once initiated, the trimerisation reaction had features of auto-
catalytic and auto- thermal reactions and temperatures 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.
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 Scrubber Accumulator. It is known that the tank 610 could
not be pressured with nitrogen at any time after 22 October, 1984. The
contents of tank 6l0 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 of 2/3 December, 1984, it appears
during the cleaning of choked fillers with water in the Relief Valve Vent
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 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."
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
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 hot challenge
the fact that MIC was a very highly volatile and dangerous material which
had to 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 prima facie
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.
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 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
hazardous nature of MIC which they were 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 involved in such an undertaking. Reply of Shri
Kamdar at '.D-19 dated 29,11.1984 was also relied upon to show the cost
estimate prepared for 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 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 MlC
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 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; The said report is
styled as Operational Safety Survey Co, MIC and SEVIN Units Union Carbide
India Limited, 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 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 were potentials for contaminations, overpressure, or
overfilling of the SEVIN MIC feed tank. At M.2.L 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 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 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
erosion/corrosion.
(d) Mechanical pump seal failures, caused by improper seal design (on
the Glit pumps, for instance) or inadequate control of replacement
materials.
(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 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 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 when it is
depressurized.
(b) Location of the tank inside a room and lack of water spray
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, but 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 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-ticularly since the
tank has been enlarged
(d) Manual control of filling of the tank, with no instrumentation
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 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 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 MIG vapours and get corroded, providing a source of contaminant
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 :
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 valve.
This graphite rupture disc may break because of pressure surges even under
normal conditions. There 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 control/indication and another for alarm) 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 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 provided was only-25 degree celsius to
PLUS 25 degree celsius, with a high alarm setting at PLUS 11 degree celsius. The
contents of the tank were being stored at ambient temperature, which varies
approximately from PLUS 15 degree celsius to PLUS 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. PLUS 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. PLUS 25 decree celsius. hi
such circumstances the actual temperature was not known and the transmitter
was of do value. Further provision of "rate of rise in temperature" alarm
would have invited the operator's attention to the start of such a
reaction. No such provision was made:"
In connection with refrigeration the Committee observed in paragraph 4.5 of
the Report as under :
4.5 Refrigeration ;
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 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 paragraphs of the Report is found an analysis of the events which led to
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 MIC. The need-less
storage of large quantities of the material in very large size containers
for inordinately long periods as welt as insufficient 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 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, arid in avoiding or lessening considerably the
extent of damage of December, 1984 at Bhopal."
In addition to the aforesaid documentary evidenc the learned Additional
Solicitor General also relied upon D-157 being Memorandum of Associa-tion
and Articles of Association of M/s Ever Ready Company (India) 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 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 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 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 1 in e could take
place since November 22, 1984 due to the defective system. Still no
remedial measures were taken. 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.
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 had been noticed. Deficiency
in safety valve and absence of fixed 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 reaction. 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 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 facie showed that all
the accused were fully responsible for the 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 actually handling the plant and
supervising its working on that fateful night at Bhopal. That accused R.
Choudhary, J. Mukund, S.P. Choudhary, K.V, Shelly 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 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 alt 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 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 framed against the accused under Section 304 Part II, IPC with or
without the aid of Section 35, IPC and even for that matter any charges
could have 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 prima facie case has been made out by the
prosecution requiring accused to face the aforesaid charges and (he trial
of the accused 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 prima facie
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 these
accused is under Section 304 Part II, IPC. So far as accused No's. 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 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 Sri offence of
culpable homicide not amounting to murder and when being so charged if it
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 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 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 relied 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 put 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 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 fade
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 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 prim
a 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 tank Mo: 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 the
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 under Section 304 Part II, IPC on the spacious plea 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 under Section 304-A 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 under Section 304 Part II. In this connection we may refer
to a decision of the Calcutta High Court to which our attention was drawn
by learned senior counsel Shri Rajendra Singh for the appellants; In the
case of Adam Ali Taluqdar and Ors. v. King-Emperor, AIR (1927) Calcutta 324
a Division Bench of the Calcutta High Court made the following pertinent
observa-tions while interpreting Section 304 Part II-read with Section 34
[PC :
"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 intention to do an act with
the knowledge that it is likely to cause death though without the intention
of causing death. Each pf 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;"
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
prima fade 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 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, (PC 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.
We may now turn to the charges framed against the concerned accused-
appellant under Sections 324 and 326 of the IPC. 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 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, '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 con-cerned 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 been done with the knowledge
that by such act itself simple hurt or grievous hurt was likely to be
caused to anyone. 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 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. 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 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 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 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 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 of 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 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 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 IPG 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 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 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 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
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 304-A 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 under Section 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 304-A could be invoked or not,
learned senior counsel for the appellants as well as learned Add].
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
under Section 304-A against concerned accused; In the case of State of
Gujarat v, Haidarali Kalubhai, [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 pr 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 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."
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
Section 304- A 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 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,
11972] 3 SCC 525. The following observations in the aforesaid judgment were
pressed in service :
"(1) 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 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, I.P.C.
The act causing deaths: must be the causa causans; it is not 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 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 fade show that the alleged
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 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
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
facing the full fledged trial. But that stage has yet hot 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 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 under Section 304-A, IPC. The following observations
of Hegde, J, speaking for a Bench of three learned Judges in the case of
Suleman 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 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 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
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 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, IPG or not? It cannot be gainsaid that the voluminous evidence led by
the 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 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 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
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 the concerned accused after they face the trial arid 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 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 oars, therefore, would make
out & prima facie case against accused nos. 5, 6, 7, 8 and 9 who were in
actual charge of running of the Bhopal plant and would require them to face
the trial for charge under Section 3G4-A of the 1PG.
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 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 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 304-A, 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 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 Esso
Standard Inc. v. Udharam Bhagwandas Japanwalla, [1975] 45 Comp. Gas. 16 he
submitted that, that was a ease 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 tie 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 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.
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 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 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. Conse-quently oh 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 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 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, 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 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 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 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 whether on the material as led by the prosecu-tion 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
IPG. 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 framed
against the concerned accused are under Section 304-A IPG 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-
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 succeed
to the aforesaid extent. Charges framed against them under Sec-tions 304
Part II, 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 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 express no opinion. Orders accord-
ingly.
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