2. The 1996 Decision
a) Facts, Laws, Reasons
In order to construe in its proper perspective the Supreme Court’s decision in Keshub Mahindra v. State of MP ((1996) 6 SCC 129), perhaps a brief backgrounder to the legal provisions involved is necessary. Section 227 of the Code of Criminal Procedure (CrPC) 1973 empowers the court to examine at a preliminary stage whether sufficient grounds exist for proceeding against the accused. Section 482 affirms the inherent powers of the High Court to make any orders to inter alia prevent abuse of the juridical process or otherwise secure the ends of justice. The Court examined in detail the two provisions and associated case law, and concluded that these powers must be exercised in the rarest of cases.
It cannot be disputed that mere act of running a plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in that No. 610 could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause death of human beings . . .. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being.
This may be reduced to the following points:
- Merely operating a legally sanctioned plant cannot amount to an offence under S. 299;
- Storing hazardous material within the plant premises cannot constitute an offence under S. 299;
- Even assuming the plant was defective, it cannot be concluded that the “accused thereby had knowledge that they were likely to cause death of human beings”;
- Merely because the accused were aware that the plant contained hazardous material, it cannot be concluded that they knew operating the plant was likely to cause deaths.
These conclusions are disturbing for several reasons. To begin with, the Court had not addressed S. 299 in as much depth as it had examined the CrPC provisions. It did not even refer to any case law on the interpretation of the provision in itself; the only precedents it discussed which related to S. 299, such as Adam Ali Talugdar v. King-Emperor (AIR 1927 Cal 324), concerns its relationship with Ss. 34 and 35.
More significantly, it is respectfully submitted that the Court erred in overlooking certain logical connections. It is indisputable that running a plant with the knowledge that it uses hazardous chemicals will not per se establish criminal liability. Neither will running a defective plant establish liability under S. 299 specifically. But when one puts the two together, it yields a scenario that entails accused running the plant knowing it contains hazardous chemicals and that it is defective. As Pratap Bhanu Mehta points out, “[T]he issue was not liability for an ‘accident’; it was liability for knowingly not acting upon risks that were known to exist.”
Indeed, nowhere in its discussion on S. 299 does the Court examine the significance of the accused’s awareness of safety deficiencies. Para 17 discusses the prosecution evidence. The Varadarajan Committee Report compiled in the aftermath of the disaster (Document D-164) highlights several safety lapses that ought to have been known to the accused. The Operational Safety Survey Report compiled by UCC experts (Document D-205), which also highlights some safety lacunae, had been circulated among the UCIL top management. This establishes strong reasons for believing that the accused was aware of the lacunae. The prosecution had in fact raised this issue, namely that the accused had not only continued to run the plant knowing about the safety deficiencies, but also that they had not undertaken any measures to rectify them. Even the judgment acknowledges this in Para 18. In the light of all this, it is not clear just why the Court,while discussing liability under S. 299, declined to take into account the accused’s awareness of safety deficiencies.
This begs the question, is knowledge of these deficiencies so germane to the issue of liability? Let us take an example and treat driving a car as analogous to running a factory. Under normal circumstances I may drive it through a crowded road in perfect safety, as long I take all reasonable precautions. Suppose I meticulously take it to an authorised service centre, and the mechanic there examines the brakes in a negligent manner. If subsequently the brakes fail and I do cause a fatal accident driving in a crowded area, it surely cannot be said that I knew such an accident was likely. In fact, because I had taken all reasonable care, I am justified in believing that brake failure was a most unlikely event. Even if I had taken the car not to an authorised service centre but a competent roadside mechanic, I can reasonably claim that since this mechanic has a reputation for competence and that many others have been satisfied with his repairing skills, I may still not be accused of knowing an accident was a likely possibility.
But what happens if (a) I have not maintained the car properly, and (b) I am aware that the brakes need repairs urgently? If I still drive the car through a crowded road, the brakes fail, and I kill a pedestrian? As mentioned earlier, had I taken reasonable precautions I can justifiably claim I believed an accident was unlikely. It stands to reason, then, that if I had not taken such precautions I knew an accident was not unlikely. So does ‘not unlikely’ amount to ‘likely’? Do two negatives make a positive here?
A simple answer: the question is irrelevant. At that point in the proceedings the Court was required to adjudicate on the merits of the case. Its jurisdiction was limited to ascertaining the existence of a prima facie case. Therefore all it needed to examine was whether ‘not unlikely’ establishes a prima facie case for ‘likely’. We may qualify it still further: The question before the Court was whether ‘not unlikely’ so comprehensively fails to establish a prima facie case for ‘likely’ as to fall within the ambit of those ‘rarest of the rare’ cases that call for quashing prosecution. Unfortunately that is effectively what the Court did conclude, it is respectfully submitted.[Continued in Part III]