Bhopal gas disaster or Supreme Court’s disaster????
Introduction
26 years have passed since the world’s worst industrial catastrophe, Bhopal gas disaster but still the repercussions of the day continue to haunt not only the victims but also our country. Victims are still struggling for justice while their wait for justice seems to be never ending. On 7th June
2010, Chief Judicial Magistrate gave the verdict and convicted all the eight accused in the 1984 Bhopal gas tragedy. The major question arises whether the justice has been done or not?
This article tries to bring its focus on the existing loopholes and the reasons behind the fact that even after passage of such long time the justice is not done, still the victims are in pain and suffering.
Background
The Bhopal plant was built in the late 1970's and was owned and operated by UCIL, an Indian company in which Union Carbide held just over half of the stock. Indian financial institutions and thousands of private investors in India owned the remainder of the stocki. On December 3
1984, toxic methyl isocyanate gas releases from Union Carbide India Ltd’s (UCIL) pesticide plant in Bhopal killing about 15,000 people and injuring at least five lakh others. Millions were left sick and the affected passed on the harmful effects of the gas to the next generationsii. Indian
demands his extradition to stand trial. Meanwhile, a British newspaper reports that Anderson is in New York after US authorities say they are unable to locate him. On June 7, 2010, all eight accused, including the then Chairman of Union Carbide Keshub Mahindra, in the Bhopal Gas disaster case convicted by a court
Dilution of charges by Supreme Court
Trial Court cannot be blamed for giving mild punishments to Bhopal gas leak accused for the trail Court’s Judgment for the charges under 304 II was itself set aside by the Supreme Court on 13th September 1996.
Hon’ble A.M. Ahmadi, C.J. and S.B. Majmudar, J. gave the judgmentiii, the issue was
whether charges can be framed under section 304 II or not. The court had taken the following reasons into consideration to reach to the above conclusion.
“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 relief -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 out of the picture.”iv
While coming to the decision the Court analyzed section 304 II and section 299 of the IPC and held as follows:
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.v”
Once the Court reached to the conclusion that the material produced by the prosecution before the Trial Court at the stage of framing of charges did not even prima facie connect the accused with any act done with the knowledge that by that act itself deaths of human beings would be caused the accused were not charged for culpable homicide and consequently the charges under 304II were diluted by the court and the accused were charged under 304 A.
This decision of Supreme Court has brought a lot of criticism because the accused would be set free after mild punishment, which could not be called Justice as the disaster took away lives of thousands people.
But the decision of SC was not right because the charge framed under section 304II was correct and there was no reason to dilute it. In the article I would deal with the reason why SC should not have diluted the charges.
1. Charge can be framed on strong suspicion:
The Court has the power to frame a charge on mere strong suspicion also. This view has been held by Court in numerous cases. In Soma Chakravarty v. State Through CBIvi as the tests for
framing of charge are different from the tests for recording a judgment of acquittal against an accused insofar as whereas in the former, strong suspicion would be sufficient, in the latter proof beyond any reasonable doubt is necessary.
Similarly in State of Maharashtra and Ors. v. Som Nath Thapa and Ors.vii 6this Court held:
“That despite the difference there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied.”
The decision of this Court in Lal Suraj @ Suraj Singh and Anr. v. State of Jharkhandviii also
“The principle of strong suspicion may be a criterion at the stage of framing of charge”
Recently in P. Vijayan v. State of Kerala & Anrix, The court held that mere strong suspicion is
basis for framing charges and held as follows:
“For framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true”
“Whether the materials at the hands of the prosecution are sufficient or not are matters for trial. At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the appellant and discharge is the only remedy. Further, whether the trial will end in conviction or acquittal is also immaterial”
Hence in the present case the prosecution had established enough evidences which make a prima facie case that the accused of Bhopal gas tragedy were to be charged under section 304II. “There was ample material produced by the prosecution in support of the charges heet which indicated that all the accused shared common criminal knowledge about potential danger of escape of the lethal gas — MIC — both on account of the defective plant which was operated under their control and supervision at Bhopal and also on account of the operational shortcomings detected by the Varadarajan expert committee,”
2. Charges generally framed for higher offence
The second point which I would like to point out regarding framing of charges is that, while framing charges Court generally frames higher charges as a matter of caution and lower punishment can always be given afterwards during the trial. But SC totally neglected this concept and altered the charges.
In Pandharinath v. State of Maharashtraxi, the Court held as follows:
“When an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available”.
Similarly in Sannaila Subba Rao & Ors. v. State of A.P.xii, Court held:
“Under Section 222 Cr.P.C., Where the accused is charged with a major offence and the said charge is not proved, the accused could be convicted of a minor offence if such a case is made out though he was not charged with the same.”
But in the present case Supreme Court interfered in the findings of the trial Court and altered the charge which should not have been done by the Court because there was no basis for doing so. The reason given by the Court was not at all satisfactory because there was a strong suspicion and prima facie case also. Hence Court’s decision was not in the interest of justice.
3. Summon trial
4. Other flaws in the judgment
The judgment of the SC itself had many flaws relating to the interpretation. Any case to be tried under section 304A IPC, there is a requirement of “Rash and Negligent Act”, unless an act is rash and negligent 304A is not attracted.
Rash act, a rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure of exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted, S.N. Hussain v. State of Andhra Pradeshxiii. Section 304-A applies only
to such acts which are rash and negligent and are directly the cause of death of another person -Negligence and rashness are essential elements under Section 304-A. Further Court held, if a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide.xiv
Hence, there was no rashness and essential ingredients of section 304A were not getting satisfied, the accused should not have been charged under section 304A. The accused persons were having complete knowledge of the danger of the death from their act. Hence, section 304II was perfectly applicable.
Conclusion
i http://www.thehindu.com/news/national/article448771.ece ii Ibid
iii Keshub Mahindra v. State of M.P. (1996)6SCC129 iv Ibid para 20
v Ibid
vi (2007) 5 SCC 403 vii1996CriLJ2448 viii (2009)2SCC696 ix 2010(1) R.A.J. 502
x http://indialawyers.wordpress.com/2010/06/08/the-judiciary-on-bhopal-gas-tragedy/ xi 2009(3) R.C.R.(Criminal) 596
xii 2008(5) R.A.J. 29 xiii AIR 1972 SC 685 (687)
