The Bhopal Case: Supreme Court's order on CBI's Curative Petition

We had previously highlighted discussions on the Law and Other Things blog pertaining to the decision of the Chief Judicial Magistrate in the Bhopal gas leak case. The CJM had purported to follow a 1996 judgment of the Supreme Court; in which, the Supreme Court had quashed charges under Section 304 (Part II) of the Indian Penal Code. Last week, a Constitution Bench of the Supreme Court dismissed a curative petition (CBI v. Keshub Mahindra) filed by the Central Bureau of Investigation against the 1996 judgment. The issue in the cases pertained to whether Union Carbide companies and executives were liable to be charged for offences under Sections 304 (Culpable homicide not amounting to murder), 324 (voluntarily causing hurt by dangerous weapons or means), 326 (voluntarily causing grievous hurt by dangerous weapons or means), etc. The 1996 judgment, at the stage of framing of charges, had found that there was no sufficient material to proceed under these Sections, and directed the trial Court to proceed only on the basis of charges u/s 304A (causing death by negligence). A curative petition was filed against this order of the Supreme Court. Last week’s order dismissing this petition has been met with dismay by activists, who wish to highlight the ‘failure of justice’ for the victims of the tragedy; however, a perusal of the Court’s order shows that these  voices of dismay are not quite justified. The Court observed:

“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 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, 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.”

On this basis, although the curative petition was dismissed, the Supreme Court clarified that the 1996 judgment should not be seen as limiting the powers of the trial court under Section 323/216 of the Code of Criminal procedure.

Under Section 323, if it appears to the Magistrate, in any inquiry into an offence or a trial before him, at any stage of the proceedings before signing judgment, that the case is one which ought to be tried by the Court of Session, then the Magistrate has to commit the case to the Sessions court. Under Section 216, a court may alter, add to or amend the charge at any time before the judgment is pronounced. What the Supreme Court seems to be saying is that the 1996 judgment is restricted to framing of charges, and if during the course of trial any fresh material on record indicated the possibility of a more serious charge, the 1996 judgment cannot be understood as protecting the accused even then. The proper remedy was not before the Supreme Court by way of a curative petition, but before the appellate or revisional court. Issues of corporate criminal liability were not specifically addressed by the Constitution Bench, but these issues – including attribution of knowledge/intention to companies, liability of officers etc. – are now likely to arise in the appellate proceedings.