Bhopal Gas Tragedy Curative Petition Dismissed

C.B.I. & Ors. v Keshub Mahindra etc.


The curative petitions were filed by Central Bureau of Investigation for recalling the judgment and order dated 13.9.1996 of the Supreme Court in Keshub Mahindra vs. State of M.P.(1996 (6) SCC 129), on the following premises :

(i) When the Supreme 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, the Supreme  Court had before it adequate material to make out prima facie, an offence chargeable under Section 304 (Part II) IPC. Therefore, the 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 ommitted offences punishable under Section 304 (Part II) IPC. But for the said judgment of the Supreme Court dated 13.9.1996, the learned Magistrate would have, by taking note of the said material, committed the case to the Court of Sessions under Section 323 of the Code of Criminal Procedure. However, in view of categorical finding recorded by the Supreme 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.

Additional Sessions Judge, Bhopal passed an order framing charges  against the accused  under different sections including section 304 (Part II). The accused unsuccessfully challenged the order framing charge by the Court of Sessions before the Madhya Pradesh High Court. They then moved the Supreme Court  which 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 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. Review petition 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)was dismissed. 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.

 Criminal Case No. 1104 of 1984 stood disposed of by the C.J.M. vide his judgment convicting accused under sections 304A, 336, 337, 338 read with Section 35 IPC and sentencing them to two years’ imprisonment. Criminal Appeal was filed by State of M.P. before the Court of Sessions with a prayer for enhancement of sentences under the existing charges. State of M.P. also filed Criminal Revision 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 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. Criminal Appeal was also filed by the CBI before the Court of Sessions for enhancement of sentences under the existing charges. CBI also filed the criminal revision only after the present curative petitions were filed before the Supreme Court. All the appeals and revisions remain pending before the Court of Sessions.

The Supreme Court observed that in the criminal revisions filed by the CBI and the State of M.P. the correct legal position was stated. But the curative petitions were based on a plea that was wrong and fallacious. No decision by any court including the Supreme Court could 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, the Supreme 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 this stage”, was 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 the Supreme Court  judgment could never had been be read to say that it removed from the Code sections 323, 216, 386, 397, 399, 401 etc. or denuded a competent court of the powers under those provisions. 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 could certainly be corrected by the appellate/revisional court. Moreover, no ground falling within the parameters of Rupa Ashok Hurra vs. Ashok Hurra 2002 (4) SCC 388 was made out in the curative petitions. Also, no satisfactory explanation was given to file such curative petitions after about 14 years from 1996 judgment of the Supreme Court. The curative petitions were thus dismissed.