# 11 KESHUB MAHINDRA v. STATE OF M.P

- **Citation:** [1996] Supp. 6 S.C.R. 285
- **Court:** Supreme Court of India
- **Decided:** 1996-09-13
- **Case number:** Criminal Appeal No. 1672 of 1996
- **Bench:** Am. Ahmadi, S.B. Majmudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/11-keshub-mahindra-v-state-of-m-p-14722
- **Pages:** 48

## Headnote

B
Criminal Law :
Criminal Procedure Code, 1973 : Sections 227, 228, 397 and 482.
Criminal Proceedings-Quashing of-Bhopal Gas Tragedy-Leakage c
of highly toxic MIC gas from storage tank of plant resulting in huge loss of
human lives-Permanent/temporary injuries or total/pa1tial disablement and
loss of cattle lives-Charges framed against personnel who handle plant
substantively under Sec. 304 Part II, 324 324 and 429 !PC r/w. S. 3~
/PC-According to Expert Committee Report escape of gas on account of D
defective plant and lack and supervision by accused led to accident-Held:
material available on record prima facie did not connect accused with
offences with which they were charged-Hence, these charges quashed and set
asid~However, prima f acie charge under S. 304-A !PC made out:-Since
originally case registered under S. 304-A, charges could be framed therew1der-T1ial Court, could also consider on material led by prosecution
whether charges could be franted under Ss. 336, 337 and 338 /PC.
E
Penal Code, 1860:
Sections 299 and 304 Part II-Ingredients of-Accused must have done
an act which caused death of a person with knowledge that by such act he
was likely to cause death.
Sections 324 and 326-Ingredients and applicability of-Accused must
commit act with knowledge that by such act he was likely to cause hurt or
grievous hurt to victim.
Sections 425 and 429-Ingredients and applicability of S. 429-/f commission of 'mischief as defined in S. 425 by accused was not made out S.
429 could not be invoked.
Constitution of India, 1950 : Anicle 142.
285
F
G
H
A.
B
286
SUPREME COURT REPORTS [ 1996] SUPP. 6 S.C.R.
Crimi11al Proceedings-Quashing of-Charges framed against accused
quashed by Supreme Court as offences alleged not prima facie made
out-However, Supreme Cowt in exercise of power under A1ticle 142 could
direct framing of charge for another offence under which case was initially
registered and as regards to which counsel for pmties addressed the Cowt with
view to avoiding multiplicity of proceedings.
A grim tragedy of unprecedented nature occu17"ed on the f atefu.l 11ight
when a ltigltly dangerous and to;xic gas called MIC escaped from a tank from
the factory belonging to accused No. 12-Union Carbide India Limited
resulting in huge loss of human lives, permanent/temporary injwies or
C total/pa1tial disablement and loss of cattle lives.
This ghastly tragedy had come to be known as 'Bhopal Gas Tragedy'.
According to the Expe1t Committee Repolt the lethal gas MIC escaped both
on account of defective plant which was operated under the control of the
D appellants-Accused and their lack of supe1vision which led to the accident.
Charges were framed against the appellants-Accused who were actually
handling the Pla1tt (accused Nos. 2 to 9 ), substantively under Section 304 Pa1t
II, 324, 326 and 429 read with Section 35 of the India11 Penal Code,1860.
Aggrieved by the aforesaid charges the appellant-accused moved Criminal
Revision Applications before the High Co wt under Sections 397 and 382 of
E the Oiminal Procedure Code, 1973, which was dismissed. Hence this appeal.
On behalf ofthe·appellants-accused it was contended that as per the
chargesheet and supporting material there was no prim a f acie case that
the accused were guilty of the offence under Sections 304-A, 324, 326 and
F
429 read with Section 35 of the IPC; that there was no proximate act of the
negligence on the part of the accused which had resulted in the accidental
tragedy; that none of !he accused could be held criminally liable for the
accident; and that the charges framed against the accused were required
to be quashed.
G
On behalf of the respondent-State it was contended that there was
ample material produced by the prosecution in support of the chargesheet;
that the Expert Committee Report had clearly indicated the causes of the
accident and the defects found in the running of the plant at the relevant
time; and that there was sufficient material to prim a f acie indicate th

## Text

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-11
KESHUB MAHINDRA
A
v.
STATE OF M.P.
SEPTEMBER 13, 1996
(AM. AHMADI, CJ. AND S.B. MAJMUDAR, J.]
B
Criminal Law :
Criminal Procedure Code, 1973 : Sections 227, 228, 397 and 482.
Criminal Proceedings-Quashing of-Bhopal Gas Tragedy-Leakage c
of highly toxic MIC gas from storage tank of plant resulting in huge loss of
human lives-Permanent/temporary injuries or total/pa1tial disablement and
loss of cattle lives-Charges framed against personnel who handle plant
substantively under Sec. 304 Part II, 324 324 and 429 !PC r/w. S. 3~
/PC-According to Expert Committee Report escape of gas on account of D
defective plant and lack and supervision by accused led to accident-Held:
material available on record prima facie did not connect accused with
offences with which they were charged-Hence, these charges quashed and set
asid~However, prima f acie charge under S. 304-A !PC made out:-Since
originally case registered under S. 304-A, charges could be framed therew1der-T1ial Court, could also consider on material led by prosecution
whether charges could be franted under Ss. 336, 337 and 338 /PC.
E
Penal Code, 1860:
Sections 299 and 304 Part II-Ingredients of-Accused must have done
an act which caused death of a person with knowledge that by such act he
was likely to cause death.
Sections 324 and 326-Ingredients and applicability of-Accused must
commit act with knowledge that by such act he was likely to cause hurt or
grievous hurt to victim.
Sections 425 and 429-Ingredients and applicability of S. 429-/f commission of 'mischief as defined in S. 425 by accused was not made out S.
429 could not be invoked.
Constitution of India, 1950 : Anicle 142.
285
F
G
H
A.
B
286
SUPREME COURT REPORTS [ 1996] SUPP. 6 S.C.R.
Crimi11al Proceedings-Quashing of-Charges framed against accused
quashed by Supreme Court as offences alleged not prima facie made
out-However, Supreme Cowt in exercise of power under A1ticle 142 could
direct framing of charge for another offence under which case was initially
registered and as regards to which counsel for pmties addressed the Cowt with
view to avoiding multiplicity of proceedings.
A grim tragedy of unprecedented nature occu17"ed on the f atefu.l 11ight
when a ltigltly dangerous and to;xic gas called MIC escaped from a tank from
the factory belonging to accused No. 12-Union Carbide India Limited
resulting in huge loss of human lives, permanent/temporary injwies or
C total/pa1tial disablement and loss of cattle lives.
This ghastly tragedy had come to be known as 'Bhopal Gas Tragedy'.
According to the Expe1t Committee Repolt the lethal gas MIC escaped both
on account of defective plant which was operated under the control of the
D appellants-Accused and their lack of supe1vision which led to the accident.
Charges were framed against the appellants-Accused who were actually
handling the Pla1tt (accused Nos. 2 to 9 ), substantively under Section 304 Pa1t
II, 324, 326 and 429 read with Section 35 of the India11 Penal Code,1860.
Aggrieved by the aforesaid charges the appellant-accused moved Criminal
Revision Applications before the High Co wt under Sections 397 and 382 of
E the Oiminal Procedure Code, 1973, which was dismissed. Hence this appeal.
On behalf ofthe·appellants-accused it was contended that as per the
chargesheet and supporting material there was no prim a f acie case that
the accused were guilty of the offence under Sections 304-A, 324, 326 and
F
429 read with Section 35 of the IPC; that there was no proximate act of the
negligence on the part of the accused which had resulted in the accidental
tragedy; that none of !he accused could be held criminally liable for the
accident; and that the charges framed against the accused were required
to be quashed.
G
On behalf of the respondent-State it was contended that there was
ample material produced by the prosecution in support of the chargesheet;
that the Expert Committee Report had clearly indicated the causes of the
accident and the defects found in the running of the plant at the relevant
time; and that there was sufficient material to prim a f acie indicate that
H the accused were liable to be prosecuted.
\>
KESHUB MAHINDRA v. STATE
2B7
Allowing the appeal in part, this Court
HELD : 1. It is clear from Sections 227 and 228 of the Criminal
Procedure Code, 1973 that while exercising jurisdiction under Section 482
Cr.P.C. when the High Court is called upon to quash the charge pursuant
A
to which proceedings at the stage of trial are pending, and even when the B
High Court is called upon to quash proceedings pursuant to complaint,
only a prima facie appraisal of the allegations made in the complaint and
the material in support thereof has to be done and the Court has no
jurisdiction to go into the merits of the allegations as that stage would
come when the trial proceeds. It is, therefore, necessary to keep in view the
limited jurisdiction available to the Court regarding the permissible C
scrutiny of the prosecution case as revealed from the chargesheet and
material supporting the same framing charges against the present accused. [302-A; B; C; G]
Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja & Ors., D
AIR (1990) SC 1962 and State of U.P. v. O.P. Shanna, (1996) 2 SCALE 356,
relied on.
2. Before any charge under Section 304 Part II of the India Penal
Code, 1860 can be framed, the material on record must at least prim a f acie
show that the accused is guilty of culpable homicide and the act allegedly E
committed by him must amount to culpable homicide. In view of Section
229 of the IPC the material relied upon by the prosecution for framing a
charge under Section 304 Part II must at least plima f acie indicate that
the accused had done an act which had caused death with at least such a
knowledge that he was by such act likely to cause death. The entire material F
which the prosecution relied upon before the Trial Court for framing the
charge cannot support such a charge unless it indicates plima f acie that
on that fateful night the plant was run by the concerned accused with the
knowledge that such running of the plant was likely to cause deaths of
human beings. Mere act of running a plant as per the permission granted
by the authorities would not be a criminal act. Even assuming that it was G
a defective plant and it was dealing with a very toxic and hazardous
substance like MIC the mere act of storing such a material by the accused
in tank could not even prim a f acie suggest that the concerned accused
thereby had knowledge that they were likely to cause death of human
beings. In fairness to prosecution it was not suggested and could not be H
288
SUPREME COURT REPORTS l1996] SUPP.6S.C.R.
A
suggested that the accused had an intention to kill any human being while
operating the plant. Taking the entire material on its face value and
assuming it to represent correct factual position in connection with the
operation of the plant on tha.t fateful night it could not be said that the
said material even prima f acie called for framing of a charge against the
B concerned accused under Section 304 Part II, IPC on the spacious plea
that the said act of the accused amounted b culpable homicide because
the operation of the plant on that night ultimately resulted in deaths of
number of human beings and cattle. When on the material produced by
the prosecution no charge could be framed against any of the accused
under Section 304 Part II there would remain no occasion to press in
C service the applicability of Section 35, IPC in support of such a charge for
those accused who were not actually concerned with the running of the
plant, namely accused Nos. 2, 3, 4, and 12. [323-E]
Adam Ali Taluqdar & Ors. v. King-Emperor, AIR (1927) Cal. 324, held
D inapplicable.
3.1. For applicability of Sections 324 and 326 of the IPC the material
relied upon by the prosecution in support of such charges must show that
the concerned accused had committed the act complained of at least with
the knowledge that by such act he was likely to cause hurt or grievous hurt
E to the victim. The material pressed in service by the prosecution for framing such charges against the accused falls short of indicating that the act
of ruQning the plant on that fateful night which in its turn involved stpring
and utilising highly dangerous and volatile substance like MIC in this
storage tank could not even prima f ticie be said to have been done with the
F
knowledge that by such act itself simple hurt or grievous hurt was likely to
be caused to any one. Consequently on such material even charge under
Sections 324 and 326, IPC could not have been framed against the concerned accused. Once this conclusion is reached there would also remain
no occasion to press in service against the accused Nos. 2, 3, 4 as well as
12, the charge under Section 35 IPC which the prosecution sought to press
G in service along with substantive Sections 324 and 326 IPC. In fact on the
material as placed by the prosecution in support of these charges if a
charge under Section 304 Part II cannot be framed then on the parity of
reasoning no charge under Sections 324 and 326 could also be framed.
[324-A-EJ
H
3.2. Before Section 429 IPC is pressed in service the material relied
(
4
KESHUBMAHINDRAv. STATE
289
upon by the prosecution must indicate even prima f acie that the concerned A
accused by running the plant on that fateful night had knowledge that by
running such plant they were likely to cause wrongful loss or damage to the
public or to any person. The material produced by the prosecution does not
even plima f acie indicate how by running such a plant wherein highly
dangerous and volatile subs~nce like MIC was stored in tank the accused
had the knowledge that· by 'that act alone they were likely to destroy
anybody's property or cause wrongful loss or damage to any person. Once
B
the applicability of Section 425, IPC dealing with 'mischier is ruled out on
such material there would remain no occasion to invoke Section 429 which
for its applicability requires the prosecution to show in the first instance
any material against the concerned accused indicating the commission of C
mischief by the accused. Therefore, on the material pressed in service by
the prosecution for framing charges against the accused no charge could
have been framed against the concerned accused either under Section 304
Part II or under Section 324, 326 or 429, IPC with or without the aid of
Section 35, IPC. On these findings all the charges will have to be quashed.
(325-A·CJ D
3.3. On the finding that the material pressed in service by the
prosecution does not indicaie even prima f acie that the accused were guilty
of an offence of culpable homicide and, therefore, Section 304 Part II was
out of picture, Section 304-A on this very finding can straightaway get
attracted at least plima facie. Because of the operation of the defective
plant on that fateful night a highly dangerous and volatile substance like
MIC got converted into poisonous gas which snuffed off the lives of
thousands of human beings and maimed other thousands and killed
number of animals and that all happened, as seen at least plima f acie the
material led by the prosecution on record, because of rash and negligent
act on the part of the accused who were in-charge of the plant. The material
led by the prosecution shows that there were not only structural defects
E
F
but even operational defects in the working of the plant on that fateful
night which resulted into this grim tragedy. Even though, therefore, these
accused cannot be charged for offences under Section 304 Part II, the
material led against them by the prosecution at least p1ima f acie showed G
that the accused were guilty of rash or negligent acts not amounting to
culpable homicide and by that act caused death of large number of
pers~ns.
3.4. It is true that though originally the criminal case was registered H
290
SUPREME COURT REPORTS l1996] SUPP. 6 S.C.R.
A
for an offence under Section 304-A of the IPC the Central Bureau of 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 to be unsustainable on the
material produced by the prosecution on record in support of these charB
c
ges. However that does not mean that on the material as it stands on record
the accused cannot even p1ima f acie be alleged to have committed any
criminal offence for which they can be called upon to face the trial and that
they should get a clean chit and clear walk-over. On the question whether
on this material Section 304-A could be invoked or not, counsel for the
appellants as well as Addi. Solicitor General for the respondent-State did
address this Court, therefore, the Court can and should, with a view to
avoid multiplicity of proceedi.ngs, exercise its powers under Article 142 of
the Constitution and decide whether the material led by the prosecution
can prima facie support charges under Section 304-A against the concerned
accused. Question of proof of rashness and negligence will arise at the stage
of trial after full evidence is led by the prosecution and even by the accused
D side if at all they choose to do so and in the light of that evidence the
question would arise whether the charge as framed is made out by the
prosecution against the concerned accused. The aforesaid conclusion,
therefore, would make out a plima f acie case against accused Nos. 5, 6, 7, 8
and 9 who were in actual charge of running of the plant and would require
E
them to face the trial for charge under Section 304-A of the IPC. [329-E]
State of Gujarat v. Haidarali Kalubai, [1976] 1 SCC 889; Ambala/ D.
Bhatt v. State of Gujarat, [1972] 3 SCC 525; Sulemim Rehiman Mulani &
Anr. v. State of Maharashtra, [1968] 2 SCR 515 and Kurban Hussain
Mohammedali Rangwalla v. State of Maharashtra, [1965] 2 SCR 622, held
F
inapplicable.
4.1. So far as the remaining accused Nos. 2, 3, 4 and 12 are concerned
the material produced on record clearly indicates at least plima facie that
they being at the helm of affairs have to face this charge for the alleged
G negligence and rashness of their subordinates who actually operated the
plant on that fateful night and for that purpose Section 35 of the IPC would
also prim a f acie get attracted against them. A mere look at that Section
shows that if the act alleged against these accused becomes criminal on
account of their sharing common knowledge about the defective running of
plant by the remaining accused who represented them on spot and who had
H to carry out their directions from them and who were otherwise required to
·'
'
KESHUB MAHINDRA v. STATE
291
supervise their activity. Section 35 of the IPC could at least prima f acie be A
invoked against accused 2, 3, 4, and 12 to be read with Section 304-A, IPC.
Consequently on the material led by the prosecution against the accused at
this stage a p1ima f acie case was made out by the prosecution for framing
charges against accused Nos. 2, 3, 4 and 12 under Section 304-A read with
Section 35 IPC while su~stantive charges under Section 304-A could be B
framed against accused ~os. 5, 6, 7, 8 and 9. (329-F; G]
Esso Standard Inc. v. Udltaram Bhagwandas Japanwalla, (1973) 45
Comp. Cas. 16, held inapplicable.
4.2. However, from the material which is produced on record there C
is a possibility of considering a further question whether charges under
Sections 336, 337 and 338 of the IPC with or without the aid of Section 35
can be framed against the concerned accused. As none of the parties have
addressed this Court on these aspects this question is left open for
consideration of the Tria' Judge who may after hearing the parties decide
whether on the material' as led by prosecution on record at this stage, D
charges, if any, can also be framed under Sections 336, 337 and 338of the
IPC with or without the aid of Section 35 of the IPC. [331-C; 332-A]
4.3. On the material led by the prosecution appropriate charges
which are required to be framed against the concerned accused are under E
Section 304-A, IPC so far as the accused Nos. 5, 6, 7, 8 and 9 are concerned
wh!le so far. as accused Nos. 2, 3, 4 and 12 are concerned charges under
Section 304-A read with Section 35 IPC will have to be framed. As these
offences are triable by the court of Judicial Magistrate 1st Class, the
Sessions Case shall be transferred to the Court of the Chief Judicial
Magistrate, 1st Class who will proceed with thetrial in accordance with.law F
and frame appropriate charges under Section 304-A with or without the aid
of Section 35, as the case may be, against the concerned accused. [332-B-C]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1672 of 1996 Etc. Etc.
From the Judgment and Order dated 1.8.95 of the Madhya Pradesh
High Court in Crl. R. No. 237 of 1993.
Asok H. Desai and K.K. Desai, A.K. Desai, K.J. John and Palkar for
G
the Appellant in Crl.A. No.1672/96.
H
292
SUPREME COURT REPORTS [1996) SUPP
1
• 6 S.C.R.
A
Prasad Dakephalkar, P.H. Parekh and Ms. Bina Madhavan for the
B
Appellant in Crl.A. Nos. 1673, 1675 and 1674/96.
Altaf Ahmad, Additional Solicitor General, P. Parmeswaran and
S.A. Matto for the Respondent.
The Judgment of the Court was delivered by
S.B. MAJMUDAR, J. Leave granted in all these Special Leave
Petitions. In these appeals the concerned appellant-accused have brought
in challenge the order dated 8th April 1993 passed by the Court of 9th
C Additional Sessions Judge, Bhopal in Sessions Trial No. 257 of 1992
whereby the learned Sessions Judge framed charges against the appellants
in appeals arising out of S.L.P. (Crl.) Nos. 3900 of 1995, 3901of1995 and
3953 of 1995 under Sections 304 Part II, 326, 324 and 429 read with Section
35 of the Indian Penal Code (for short 'IPC' ') and framed charges under
D Sections 304 Part II, 326, 324 and 309 against the appellants in appeal
arising out of S.L.P. (Crl.) No. 3932 of 1995. They had also challenged the
orders of the High Court of Madhya Pradesh at J abalpur in Criminal
Revision Application Nos. 237/93, 238/93, 312/93 and 311/93 whereby these
charges were sustained. Appeal arising out of S.L.P. (Crl.) No. 3900of1995
is moved by Shri Keshub Mahindra who is accused No. 2 before the
E Sessions Court. Appeal arising out of S.L.P. (Crl.) t'io. 3901 of 1995 is
moved by Shri V.P. Gokhale who is accused No. 3 in the same case. Appeal
arising out of S.L.P. (Crl.) No. 3953 of 1995 is moved by Kishore Kamdar
who is accused No. 4 in the said case while the last appeal arising out of
S.L.P. (Crl.) No. 3932of1995 is moved by six accused being Shri J. Mukund
F
accused No. 5, Dr. R.B. Roy Choudhary accused No. 6, Shri S.P. Chaudhary accused No. 7, Shri K.V. Setty accused No. 8, Shri S.I. Qureshi
accused No. 9 and Union Carbide India Limited ('UCTL' for short)
accused No. 12 in the same case pending before the Sessions Court at
Bhopal. The concerned appellants had moved the High Court of Madhya
Pradesh at J abalpur under Sections 397 and 482 of the Code of Criminal
G Procedure (Cr.P.C.) for quashing the aforesaid charges .
.
With a view to highlighting the grievances of the appellants a few
relevant facts deserve to be noted at the outset.
H Introductory Facts
KESHUB MAHINDRA v. STATE (S.B. MAJMUDAR, J.]
293
A grim tragedy of unprecedented nature occurred at Bhopal on the A
night intervening 2nd December 1984 and 3rd December 1984 wherein
between 0030 hours and 0045 hours a highly dangerous and toxic gas called
MIC escaped from tank No. E610 from the Bhopal factory belonging to
accused No. 12 UCIL. As a result of this leakage 3828 human beings lost
their lives while permanent injuries were caused to 18922 human beings,
tei:nporary disablement was suffered by 7172 human beings, temporary
disablement caused by permanent injury was suffered by 1313 persons
while permanent partial disablement was suffered by 2680 persons, While
B
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
c
of Union Carbide Corporation. The said concern was also indicted as D
accused No. 10. Accused No. 2 Keshub Mahindra was the r:hairman of
UCIL which in its turn was shown as accused No. 12. Accused No. 3 V.P.
Gokhale was shown as an accused in his capacity as Managing Director of
UCIL. Kishore Kamdar who was the Vice President and Incharge of A.P.
Division of UCIL was shown as accused No. 4. Shri J. Mukund the Works E
Manager of the Bhopal Plant was joined as accused No. 5. Dr. R.B. Roy
Choudhary who was Assistant Works Manager, A.P. Division, UCIL at
Bhopal was joined as accused No. 6. Accused No. 7. was Shri S.P. Choudhary, Production Manager of the Bhopal Plant. Shri K.V. Shetty, Plant
Superintendent of the said Bhopal plant was accused No. 8. Shri S.I.
F
Qureshi was shown as accused No. 9. He was Production Assistant at the
said Bhopal plant. Out of the above accused persons accused Nos. 5, 6, 7,
8 and 9 were stationed at Bhopal and were incharge of the Bhopal Plant
itself.
On the registration of the aforesaid Crime Case the Station House
G
. Officer, Bhopal, arrested five employees of the factory, namely, accused
Nos. 5 to 9 and they were kept in police custody. Accused Nos. 1, 2 and 3
were arrested on 7th December 1984. Out of them accused No. 1 Shri
Warren Anderson was released on bail the same day. On 6th of December H
294
SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.
A
1984 the case was handed over to the CBI. On completion of investigation
the chargesheet was presented by the CBI in the Court of CJM, Bhopal on
1st December 1987.
B
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 and arising out of the Bhopal Gas Disaster
were quashed by this Court. As a result the proceedings in the present case
C which were then pending in the Committal Court stood terminated. However the said order was reviewed by this Court on 3rd October 1991 and
the above criminal proceedings were restored. After their restoration the
case was committed to the Court of Sessions. Commitment was made by
order dated 30th April 1992. On the case being committed to the Court of
D Sessions it was registered as Sessions Trial Case No. 237 of 1992 as
aforesaid. It appears that trial of the criminal case against accused No. 1
Warren Anderson, accused no. 10 UCC and accused No. 11 Union Carbide (Eastern) -Inc., Hongkong had to be segregated and split up as the
concerned accused were absconding. The trial proceeded against remainE
F
G
H
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/KV. Setty and S.I. Qureshi committed culpable
homicide not amounting to murder by causing death of 3828 or
KE.SHUB MAHINDRA v. STATE [S.B. MATMUDAR, J.)
295
more human beings by allowing the highly toxic gas known by the A
name of MIC to escape from tank No. 610 of AP. Division plant
of UCIL knowing that it was likely to cause deaths and you sharing
this common knowlege with them did not do anything to avoid the
said escape of gas thus you thereby committed on each courts an
offence punishable under Sec. 304 (II) R/W Sec. 35 of the IPC and
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 committed on each count an offence punishable under section 326 R/W
Sec. 35 IPC and within the cognizance of the Court of Sessions.
17tirdly : That on the above date and at the above place, co-accused
persons by allowing to escape from the above tank the corrosive
substance known by the name of MIC gas knowing that it was likely
B
c
D
to cause hurts, thus voluntarily (ai defined Under Sec. 39 IPC)
caused hurts to 8485 or more human beings and you sharing this E
common knowledge with them did not do anything to avoid the
said escape of gas, thus you the_reby committed on each count an
offence punishable U/S 324 R/W Sec. 35 IPC and within the
cognizance of the Court of Sessions.
Fourthly : That on the above date and at the above place the above F
accused persons by allowing MIC gas to escape from the above
tank knowing that it was likely to cause death of animals, committed mischief by killing thereby 2544 or more animals of various
descriptions each valuing more than Rs. 50 and you sharing this
common knowledge with them did not do anything to avoid the G
said escape of gas, thus you thereby committed on each count an
offence punishable U/S 429 R/W Sec. 35 IPC and within the
cognizance of the Court of Sessions."
Charges framed against accused No. 3 V.P. Gokhale were identical
with the charges framed against accused No. 2.
H
A
B
c
D
E
F
G
H
296
SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.
Charges framed against accused No. 4 Kishore Kamdar ran as under:
"Firstly : That on or about the. night intervening 2nd and 3rd
December, 1984 at Bhopal, the Capital of M.P. co-accused persons
S/Shri Kishore Kamdar/J. Mukund/R.B. Roy Choudhary/S.P.
Choudhary/KV. Shetty and S.I. Qureshi committed culpable
homicide not amounting to murder by causing death of 3828 or
more human beings by allowing the highly toxic gas known by the
name of MIC to escape from tank No. 610 of A.P. Division Plan1
of UCIL knowing that this common knowledge with them did not
do any thing to avoid escape of gas thus you thereby committed
on each count an offence punishable U/S 304(II) R/W Sec. 35 of
the I.P.C. arid within the cognizance of the court of Sessions.
Secondly : That on the above date and at the above place, above
co-accused persons by allowing to escape from the above tank the
corrosive substance known by the name of MIC gas, knowing that
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.
17iirdly : That on the above date and at the above place, above
co-accused persons by allowing to escape from the above tank the
corrosive substance known by the name of MIC gas, knowing that
it was likely to cause hurts, thus voluntarily (as defined U/S. 39
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.
Fowthly: That on the above date and at the above place, the above
co-accused persons by allowing MIC gas to escape from the above
tank knowing that it was likely to cause death of animals, committed 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
KESHUBMAHINDRAv.STATE[S.B.MAJMUDAR,J.]
297
said escape of gas, thus you thereby committed on each count an A·
offence punishable U/S. 429 R/W Sec. 35 IPC and within the
cognizance of the Court of Sessions."
Charges framed against accused No 5 J. Mukund were as under:
"Firstly : That you on or about the night intervening 2nd and 3rd
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
B
of UCIL, knowing that it was likely to cause deaths and you thereby C
committed on each count an offence punishable U/S 304(II) l.P.C.
and within the cognizance of the court of Sessions.
Secondly : That you on the above date and at the above place by
allowing to escape from tank No. 610 of the A.P. Division Plant D
of UCIL, a corrosive substance known by the name of MIC gas,
knowing that it was likely to cause grevious hurts, thus voluntarily
(as defined U/S. 39 IPC) caused grevious hurts to 21694 or more
human beings and, thereby committed on each count an offence
punishable U/S. 326 IPC and within the cognizance of the Court
of Sessions.
E
Third(v : That on the above date and at the above place by allowing
to escape from tank No. 610 of A.P. Division Plant of UCIL, a
corrosive substance known by the name of MIC gas, knowing that
it was likely to cause hurts, thus voluntarily (as defined U/S. 39
F
IPC) caused hurts to 8485 or more human beings and thereby
committed on each count an offence punishable U/S. 324 l.P.C.
and within the cognizance of the Court of Sessions.
Fourthly : That on the above date and at the place by allowing to G
escape from tank No. 610 of the A.P. Division Plant of UCIL,
knowing that it was likely to cause death of animals, committed
mischief by killing thereby 2544 or more animals of various descriptions each valuing more than Rs. 50 and thereby committed on
each count an offence punishable U/S. 429 IPC and within the
cognizance of the Court of Sessions."
H
A
B
c
D
E
F
G
H
298
SUPREME COURT REPORTS 11996) SUPP. 6 S.C.R.
Identical charges were framed against accused No. 6 R.B. Roy
Choudhary, accused No. 7 S.P. Choudhary, accused No. 8 K.V. Shetty and
accused No. 9 S.I. Qureshi while UCIL, Calcutta accused No. 12 had to
face the following charges :
"Firstly : That on or about the night intervening 2nd and 3rd
December, 1984 at Bhopal, the Capital ofM.P. co-accused persons
S/Shri Kishore Kamdar/J. Mukund/R.B. Roy Choudhary/S.P.
Choudhary/K. V. Shetty and SJ. Qureshi committed culpable
homicide not amounting to murder by causing death of 3828 or
more human beings by allowing the highly toxic gas known by the
name of MIC to escape from tank No. 610 of AP. Division Plant
of UCIL knowing that it was likely to cause deaths and you sharing
this common knowledge with them did not do any thing to avoid
the said escape of gas thus you thereby committed on each count
an offence punishable U/S 304(11) R/W Sec. 35 of the I.P.C. and
within the cognizance of the court of Sessions.
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
UIS 39 IPC) caused grevious hurts to 21694 or more human beings
and you sharing this common knowledge with them did not do
anything to avoid the said escape of gas, thus you thereby committed on each count an offence punishable U/S. 326 R/W Sec. 35
IPC and within the cognizance of Court of Sessions.
17zirdly : That on the above date and at the above place, above
co-accused persons by allowing to escape from the above tank the
corrosive substance known by the name of MIC gas, knowing that
it was likely to cause hurts, thus voluntarily (as defined U/S. 39
IPC} caused hurts to 8485 or more human beings and you sharing
this common knowledge with them did not do anything to avoid
the said escape of gas, thus ym1 thereby committed on each count
an offence punishable U/S. 324 R/W Sec. 35 IPC and within the
cognizance of the Court of Sessions.
Fowthly: That on the above.date and at the above place, the above
co-accused persons by allowing MIC gas to escape from the above
...
;
KESHUB MAHINDRA v. STATE [S.B. MAJMUDAR,J.]
299
tank knowing that it was likely to cause death of animals, comA
mitted mischief by killing thereby 2544 or more animals of various
descriptions each valuing more than Rs. 50 and you sharing this
common knowledge with them did not do any thing to avoid the
said escape of gas, thus you thereby committed on each count an
offence punishable U/S. 429 R/W. Sec. 35 IPC and within the B
cognizance of the Court of Sessions."
All these accused being aggrieved by the aforesaid charges framed
by the learned Sessions Judge approached the High Court of Madhya
Pradesh at Jabalpur in Criminal Revision Applications moved under Sections 397 and 482 of the Cr.P.C. as noted earlier. The High Court of C
Madhya Pradesh by common judgment in three Criminal Revising 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 D
Choudhary, accused No. 7 S.P. Choudhary, accused No. 8 K.V. Shetty,
accused No. 9 S.I. Qureshi and accused No. 12 UCIL was also dismissed
by a separate order of even date. It is under these circumstances that the
concerned accused are in appeal before us on special leave.
Learned senior counsel Shri Ashok Desai appearing for accused No. E
2 Keshub Mahindra, learned senior counsel Shri Nariman, appearing for
accused No. 3 V.P. Gokhale and learned senior counsel Shri Rajendra
Singh, appearing for the remaining accused vehemently contended that
taking the case of the prosecution at the highest as reflected by the contents
of the chargesheet and the supporting material it could not be even prima F
f acie said that the concerned accused were guilty of offence of culpable
homicide not amounting to murder as envisaged by Section 304 Part II,
IPC with which they are charged. That there was no question of the
concerned accused having done any act on that fateful night at Bhopal
which was done with the knowledge that they were likely by such act to G
cause death and consequently they could not have been charged on the
material produced by the prosecution before the Trial Court at this stage
of the trial for the offence of culpable homicide not amounting to murder.
It was also submitted that on the same reasoning they could not have been
charged for offence under S~ctloii 326 IPC for voluntarily causing grievous
hurt or for that matter for ·the offence under Section 324 for voluntarily H
300
SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.
A causing hurt by dangerous means. It was also contended that on the same
parity of reasoning no case is made out against the concerned accused
under Section 429 IPC for having committed mischief by killing, poisoning
or maiming any animals. It was also submitted that so far as accused Nos.
2, 3 and 4 were concerned they were stationed at Bombay and they were
B not concerned with the day to day working of the Plant at Bhopal. Consequently there was no question of framing any charge against them for the
aforesaid offences read with Section 35 of IPC as there was no evidence
whatsoever for even alleging against these accused that they had any
criminal knowledge in connection with the misshap that occurred on that
fateful night at Bhopal. It was also contended by the aforesaid learned
C senior counsel that even lesser charge under Section 304-A, IPC also could
not have been framed on this material as nothing was alleged by the
prosecution at this stage about any proximate act of the negligence on the
part of the concerned accused which had resulted into this accidental
tragedy. That if at all it ·was an unfortunate accident which had taken heavy
D toll of human lives and cattle wealth, however, none of the accused could
be held criminally liable for the said accident. It was, therefore, contended
that the charges as framed against the concerned accused are required to
be quashed and the High Court had erred in not exercising its jurisdiction
in that behalf.
E
On the other hand learned Additional Solicitor General Shri Altaf
Ahmed submitted that there was ample material produced by the prosecution in support of the chargesheet which clearly indicated that all the
concerned accused shared common criminal knowledge about the potential
danger of escape of the lethal gas MIC both on account of defective plant
F
which was operated under their control and supervision at Bhopal and also
on account of the operational shortcomings detected by the Expert Committee which had gone into the causes of this unfortunate accident, namely,
Vardarajan Committee which was constituted by the Government of India
for that purpose. That the report of the Scientific and Industrial Research
team had clearly indicated the causes of this tragedy and the defects found
G in the running of the Plant at the relevant time. That this material indicated
that all the accused were properly charged for the offences alleged against
them and that the court at this stage was not concerned with the t'nrth or
falsity of the allegations with which the prosecution has charged them. That
at this stage only enquiry into the prima f acie nature of the allegations
H supporting these charges has to be made and if there is any material to·
KESHUBMAHINDRAv.STATE(S.B.MAJMUDAR,J.]
301
prim a f acie indicate that the concerned accused were liable to be A
prosecuted for the charges with which they are indicated the trial is
required to be permitted to proceed further and should not be nipped in
the bud as the appellants would like to have it. In support of the respective
contentions learned senior counsel for the appellants as well as learned
Additional Solicitor General relied upon various decisions of this Court to B
which we will make a reference at appropriate stage in latter part of this
judgment.
Before we deal with the nature of the material produced by the
prosecution before the Trial Court for framing the charges against the
concerned accused it will be necessary to keep in view the limited nature C
of the jurisdiction available to the court for deciding whether the charges
framed are legally sustainable on the basis of the material available at this
stage. Section 227 of the Cr.P.C.