The Central Bureau of Investigation on Monday filed a curative petition in the Supreme Court in the ‘Bhopal gas tragedy case' to recall the order dated September 13, 1996, quashing the charges under Section 304 Part II of the Indian Penal Code (culpable homicide not amounting to murder) against the accused.
Contending that failure of justice had affected not only the victims but also society and the nation as a whole, the CBI wanted these charges to be restored against the accused, Keshub Mahindra and others (including Union Carbide India), who were let off by a trial court in Bhopal in June with a minor punishment of two years for an offence under IPC Section 304 A (negligence). The petition is silent on Warren Anderson, the former chairman of Union Carbide.
A curative petition is filed after the dismissal of a review petition asking the Supreme Court to correct its mistake in exceptional circumstances, and is heard by the Chief Justice of India and four other senior most judges. The Supreme Court had on March 10, 1997, dismissed a review petition filed by the Bhopal Gas Peedith Sangharsh Sahayog Samiti.
The curative petition settled by Attorney General G.E. Vahanvati and filed by counsel Devadatt Kamat said that categorical evidence had now come to light, “which unequivocally points to the commission of offences under Section 304 Part II of the IPC by the respondents/accused persons.”
It submitted that the perpetrators behind one of the world's biggest industrial catastrophes should not walk away with a minimal punishment of two years under Section 304-A, despite ample evidence to show the commission of an offence under Section 304 Part II of the IPC.
The petition said the tragedy unfolded in Bhopal on the intervening night of December 2/3, 1984 when a highly dangerous and toxic gas, Methyl Isocyanate (MIC), leaked in the Union Carbide India Limited (UCIL) plant. “It resulted in the death of 5,295 human beings, and injuries to almost 5,68,292 persons, besides loss of livestock and loss of property of almost 5,478 persons. No amount of compensation or rehabilitation can substitute the loss of these innocent lives. The State is duty-bound to ensure that justice is done to these thousands of persons who lost their lives.”
It is submitted that the material on record clearly pointed to the fact that the respondents/accused persons had the knowledge that it was a defective plant. Once this knowledge was attributed to the respondent/accused persons, the fact that no action was taken to set right and cure the defects in the plant would by itself attract the provisions contemplated under Section 299 r/w 304 Part II of the IPC.
It said the Supreme Court erred in quashing these charges at the threshold against the well-settled law laid down by this Court that Section 482 of the Cr.PC cannot be exercised in a situation where the prosecution had prima facie material to show the complicity of the accused for the offences alleged to be committed.
It submitted that to maintain an inherently dangerous substance like MIC in an inherently dangerous manner and mechanism and deliberately not taking the required care for prevention of an accident from an inherently dangerous and fatal substance fulfils all the ingredients of a prima facie case of culpable homicide not amounting to murder punishable under Section 304 Part II of the IPC.
The categorical finding of the trial court on June 7 and the resulting public concern and outcry, having regard to the enormity of the tragedy, led to the reconsideration of all issues pertaining to the Bhopal gas leak and its aftermath and the issues arising therefrom. This led to a review by the Union of India at the highest level and various steps were outlined and were being implemented.
Seeking to recall the 1996 order, the petition said “the analysis of the judgment of the trial court and the evidence brought on record in conjunction with the material on record before this court in 1996 shows that there has been a manifest failure of justice in the deletion of charges under Section 304 Part II.”