COURT'S DECISION CANNOT OVER-RIDE THE EXPRESS PROVISION OF AN ACT

                                                                                             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)

HEAD NOTES:-Code of Criminal Procedure, 1973: ss.323 216, 386, 397, 399, 401 - Jurisdiction of court to exercise power conferred under the Code - Scope of - The Supreme Court passed judgment on 13.9.1996 quashing the charges framed by the Sessions Court and directing that on the material led by prosecution the charge u/s.304A, IPC be made out against accused - Curative  petitions filed after 14 years of 1996 judgment on the ground that the said judgment barred the Magistrate from exercising his judicial power u/s.323 – 

Held: No decision by any court can be read in a manner as to nullify the express provisions of an Act or the Code - In the 1996 judgment, the Supreme Court clearly held that its findings were based on materials gathered in investigation and brought before the court till that stage - At every place in the judgment, the Court recorded the finding in regard to the appropriate charges against the accused, it qualified the finding or observation by saying "on the materials produced by the prosecution for framing charge" - The 1996 judgment was rendered at the stage of ss.209/228/240 and the judgment cannot be read to say that it denuded a competent court of the powers under ss.323, 216, 386, 397, 399, 401 etc. - The 1996 judgment cannot be said to be a fetter against the proper exercise of powers by a court of competent jurisdiction under the relevant provisions of the Code - No grounds falling within the parameters of *Rupa Ashok Hurra case made out in the instant curative petitions - Moreover, no satisfactory explanation is given to file such curative petitions after about 14 years from 1996 judgment of the Supreme Court - Curative petitions dismissed - Curative Petition.  

*Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388 - relied on.

Keshub Mahindra v. State of M.P. (1996) 6 SCC 129 - referred to.

Case Law Reference:

(1996) 6 SCC 129   referred to   Paras 1, 3

(2002) 4 SCC 388   relied on       Para 4

CRIMINAL APPELLATE JURISDICTION : Curative Petition (Criminal) Nos. 39-42 of 2010.In Criminal Appeal Nos. 1672-1675 of 1996. 

(Goolam E. Vahanvati, AG, Indira Jaising, H.P. Rayal and Vivek K. Tankha, ASG, H.N. Salve, Amit Desai, Sidharth Luthra, C.U. Singh and Ram Jethmalani, Devadatt Kamat, Anoopam N. Prasad, Naila Jung, Nishanth Patil, Rohit Sharma, Sreekant N. Terdal, T.A. Khan, Arvind Kumar Sharma, Pianka Telang, Nitin Lonkar Parmeshwar, Samridhi Sinha, Chinmoy Sharma, Anriudh Sharma, Ananda Mukherjee, Harsh N. Parekh, Avi Singh, Karuna Nandy, Aparna Bhat, Gopal Krishna Shenoy, Mahesh Agarwal, Neeha Nagpal, E.C. Agrawala, Radhika Gautam, Rishi Agrawala, O.P. Khaitan, Ramesh Singh, A.T. Patra, Ajay Gupta, Aradhana Patra (for O.P. Khaiatan & Co.), Ramesh Singh, A.T. Patra, S.U.K. Sagar, Bina Madhavan, Vaibhav Gaggar, Anurag Ahluwalia, Krishna Kumar Singh, Karan Kanwal, Mohinder Charak, Vinita Sasidharan, Praseena E. Joseph (for Lawyers' Knit & Co.), Pratul Shandilya, Rishabh Sancheti, Sameer Sodhi Vaibhav Shrivastav, Kumanan D., Varun Chopra, C.D. Singh, Sanjay Parikh, Aagney Sail, Mamta Saxena, Anitha Shenoy, Prashanto Chandra Sen, Yug Mohit Choudhary, Lata Krishnamurty, Nitin Dahiya, Pallav Kumar, Rishi Maheshwari and P.S. Sudheer for the appearing parties.)

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  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.

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 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 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 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   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 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.   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.

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.

                                                (S. H. Kapadia) .....................................CJI

                                                (Altamas Kabir) ......................................J.

                                                (R.V. Raveendran)..................................J.        

                                                (B. Sudershan Reddy).............................J.

                                                (Aftab Alam) ...........................................J

New Delhi;

May 11, 2011