C.B.I Vs KESHUB MAHINDRA
Bench: S.H. KAPADIA,ALTAMAS KABIR,R.V. RAVEENDRAN,B. SUDERSHAN REDDY,AFTAB ALAM
Case number: CURATIVE PET(R) No.-000039-000042 / 2010
Diary number: 24065 / 2010
Advocates: ARVIND KUMAR SHARMA Vs
E. C. AGRAWALA
REPORTABLE IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CURATIVE PETITION (CRL.) NOS. 39-42 OF 2010
IN CRIMINAL APPEAL NOS. 1672-1675 OF 1996
C.B.I. & Ors. … Petitioner(s)
versus
Keshub Mahindra etc. etc. …Respondent(s)
O R D E R
S.H. KAPADIA, CJI
1. These curative petitions are filed by Central Bureau of
Investigation for recalling the judgment and order dated
13.9.1996 of this Court in Keshub Mahindra vs. State of
M.P. (Criminal Appeal Nos. 1672-1675 of 1996 decided on
13.9.1996 reported in 1996 (6) SCC 129), on the following
premises :
(i) When this Court, by the said judgment dated 13.9.1996
quashed the charges framed against accused Nos. 2 to 5,
7 to 9 and 12 under Sections 304 (Part II), 324, 326 and
429 IPC and directed the trial court to frame charges
under Section 304A IPC, this Court had before it
adequate material to make out prima facie, an offence
chargeable under Section 304 (Part II) IPC. Therefore,
this Court committed a serious error in ignoring such
material and quashing the charge under Section 304
(Part II) IPC.
(ii) The evidence placed in support of the charge under
Section 304A IPC during the trial of the said accused
before the learned Chief Judicial Magistrate, Bhopal
showed prima facie that the said accused had committed
offences punishable under Section 304 (Part II) IPC. But
for the said judgment of this Court dated 13.9.1996, the
learned Magistrate would have, by taking note of the said
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material, committed the case to the Court of Sessions
under Section 323 of the Code of Criminal Procedure (for
short ‘the Code’). However, in view of categorical finding
recorded by this Court, in its binding judgment dated
13.9.1996 that there was no material for a charge under
Section 304 (Part II) IPC and consequential quashing of
the said charge, with a direction to frame the charge
under Section 304A IPC, the learned Magistrate was
barred from exercising his judicial power under Section
323 of the Code, even though the Code vested the
jurisdiction in him to alter the charge or commit the case
to the Court of Sessions as the case may be, on the basis
of evidence that came on record during the trial.
(iii) The judgment dated 13.9.1996 therefore resulted in
perpetuation of irremediable injustice necessitating filing
of the curative petitions seeking recall of the judgment
dated 13.9.1996.
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2. On the night of December 02, 1984 there was a massive
escape of lethal gas from the MIC storage tank at Bhopal plant
of the Union Carbide (I) Ltd. (UCIL) into the atmosphere
causing the death of 5,295 people leaving 5,68,292 people
suffering from different kinds of injuries ranging from
permanent total disablement to less serious injuries. On the
day following the incident, the SHO, Hanuman Ganj Police
Station, suo moto, registered a Crime Case No. 1104 of 1984
under Section 304A IPC. On December 06, 1984 investigation
was handed over to the CBI, which investigation stood
completed, resulting in filing of charge sheets by the CBI in
the Court of C.J.M., Bhopal on December 01, 1987. Since the
charge sheets inter alia alleged commission of offence under
Sections 304, 324, 326, 429 read with Section 35 of IPC, the
case was committed by the C.J.M. to the Sessions Court as
Sessions Case No. 237 of 1992 (See : Order dated 30th April,
1992). On 8th April, 1993, the 9th Additional Sessions Judge,
Bhopal passed an order framing charges against the accused
Nos. 5 to 9 under Sections 304 (Part II), 324, 326 and 429 of
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IPC and against accused Nos. 2, 3, 4 and 12 under the very
same Sections but with the aid of Section 35 of IPC. It may be
mentioned that at the time of framing of charge, the Court had
before it, accused Nos. 2 to 9 and accused No. 12 (UCIL)
whereas accused No. 1 (Warren Anderson) was absconding
and the Court was also unable to bring before it the other two
companies, UCC and Union Carbide Eastern Inc., accused
Nos. 10 and 11.
3. The accused after having unsuccessfully challenged the
order framing charge by the Court of Sessions before the
Madhya Pradesh High Court, brought the matter to this Court
in four separate appeals in which the leading case was Appeal
(Cri.) No. 1672 of 1996 filed at the instance of accused No. 2
which stood ultimately disposed of by the judgment of the
Division Bench of this Court dated September 13, 1996 in the
case of Keshub Mahindra (supra). This Court held that on
the material produced by the prosecution before the Trial
Court at the stage of framing of charges, no charges could
have been framed against the accused under Section 304 (Part
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II) or under Sections 324, 326, 429 with or without the aid of
Section 35 IPC and it accordingly quashed the charges framed
by the Sessions Court and directed that on the material led by
the prosecution the charge under Section 304A IPC could be
made out against accused Nos. 5, 6, 7, 8 and 9 and under the
same sections with the aid of Section 35 against accused Nos.
2, 3, 4 and 12. Applications seeking leave to file a review
petition being Criminal Misc. Petition Nos. 1713-16 of 1997 in
a proposed review petition stood dismissed on March 10,
1997. These applications were filed jointly by Bhopal Gas
Peedith Sangharsh Sahyog Samiti (BGPSSS), Bhopal Gas
Peedith Mahila Udyog Sangathan (BGPMUS) and Bhopal
Group for Information and Action (BGIA). The CBI/State of
M.P. did not question the said 1996 judgment or filed any
review petition under Article 137 of the Constitution and
instead proceeded for the next 14 years to prosecute the
accused under Sections 304A, 336, 337, 338 read with Section
35 IPC. It is only on 26th April, 2010, after the defence
evidence stood concluded and after conclusion of the oral
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arguments by the Senior Public Prosecutor, that, a petition
was filed jointly by BGPSSS and BGPMUS under Section 216
Cr.P.C. for enhancement of the charge to Section 304 (Part II)
IPC. This application was not supported by CBI. The said
application was rejected by the C.J.M. on the same day.
However, this order of the C.J.M. was also never challenged
under Section 397/399 or under Section 482 Cr.P.C.
Ultimately on June 7, 2010 Criminal Case No. 1104 of 1984
stood disposed of by the C.J.M. vide his judgment convicting
accused Nos. 2 to 5, 7 to 9 and 12 under Sections 304A, 336,
337, 338 read with Section 35 IPC and sentencing them to two
years’ imprisonment. On June 29, 2010 Criminal Appeal No.
369 of 2010 was filed by State of M.P. before the Court of
Sessions with a prayer for enhancement of sentences under the
existing charges. On the same day the State of M.P. also filed
Criminal Revision Application No. 330 of 2010 before the Court
of Sessions under Section 397 Cr.P.C., challenging the alleged
failure of the C.J.M. to enhance the charges to Section 304 (Part
II) in exercise of his jurisdiction under Section 216 Cr.P.C., and
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to commit the trial of the case to Sessions under Section 323
Cr.P.C. and inter alia praying for a direction to enhance charges
and commit. On July 29, 2010 Criminal Appeal No. 487 of 2010
was filed by the CBI before the Court of Sessions for
enhancement of sentences under the existing charges. On 23rd
August, 2010, CBI filed the criminal revision only after the
present curative petitions were filed before this Court on August
2, 2010. All the appeals and revisions remain pending before the
Court of Sessions.
4. It is clear to us that in the criminal revisions filed by the
CBI and the State of M.P. the legal position is correctly stated.
But the curative petitions are based on a plea that is wrong and
fallacious. As noted above, one of the main planks of the
curative petitions is that even though in course of trial before the
Magistrate, additional evidences have come on record that fully
warrant the framing of the higher charge (s) and the trial of the
accused on those higher charges, as long as the 1996 judgment
stands the Sessions Court would feel helpless in framing any
higher charges against the accused in the same way as the trial
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court observed that in view of the judgment of the Supreme
Court no court had the power to try the accused for an offence
higher than the one under Section 304A of IPC. The assumption
is wrong and without any basis. It stems from a complete
misapprehension in regard to the binding nature of the 1996
judgment. No decision by any court, this Court not excluded,
can be read in a manner as to nullify the express provisions
of an Act or the Code and the 1996 judgment never intended to
do so. In the 1996 judgment, this Court was at pains to make it
absolutely clear that its findings were based on materials
gathered in investigation and brought before the Court till that
stage. At every place in the judgment where the Court records
the finding or makes an observation in regard to the appropriate
charge against the accused, it qualifies the finding or the
observation by saying “on the materials produced by the
prosecution for framing charge”. “At this stage”, is a kind of a
constant refrain in that judgment. The 1996 judgment was
rendered at the stage of sections 209/228/240 of the Code and
we are completely unable to see how the judgment can be read to
say that it removed from the Code sections 323, 216, 386, 397,
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399, 401 etc. or denuded a competent court of the powers under
those provisions. In our view, on the basis of the material on
record, it is wrong to assume that the 1996 judgment is a fetter
against the proper exercise of powers by a court of competent
jurisdiction under the relevant provisions of the Code. If
according to the curative petitioner, the learned Magistrate failed
to appreciate the correct legal position and misread the decision
dated 13.9.1996 as tying his hands from exercising the power
under Section 323 or under Section 216 of the Code, it can
certainly be corrected by the appellate/revisional court. In fact,
the revision petitions though belatedly filed by the State of M.P.
and the CBI (which are still pending) have asserted this position
in the grounds of revision. Moreover, no ground falling within
the parameters of Rupa Ashok Hurra vs. Ashok Hurra 2002 (4)
SCC 388 is made out in the curative petitions. Also, no
satisfactory explanation is given to file such curative petitions
after about 14 years from 1996 judgment of the Supreme Court.
The curative petitions are therefore dismissed.
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5. Nothing stated above shall be construed as expression of
any view or opinion on the merits of the matters pending before
the learned Sessions Judge, Bhopal.
…..……………………….CJI (S. H. Kapadia)
……………………………..J. (Altamas Kabir)
……………………………..J. (R.V. Raveendran)
……………………………..J. (B. Sudershan Reddy)
……………………………..J. (Aftab Alam)
New Delhi; May 11, 2011
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