Himachal Pradesh High Court
Vinod Kumar vs State Of Himachal Pradesh on 11 June, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.455 & 456 of 2024
Date of Decision: 11.06.2024
________________________________________________________________
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1. Cr.MP(M) No.455 of 2024
Vinod Kumar
.........Petitioner
Versus
State of Himachal Pradesh
.......Respondent
2. Cr.MP(M) No.456 of 2024
Chandershekhar
.........Petitioner
Versus
State of Himachal Pradesh
r .......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioners: Mr. Ajay Kochhar, Senior Advocate with
Mr. Ashwani Sharma, Mr. Varun
Chauhan and Mr. Bhairav Gupta and
Mr. Vaibhav Shukla, Advocates.
For the respondent: Mr. Anup Rattan, Advocate General along
with Mr. Rajan Kahol, Additional Advocate
General for respondent/State.
________________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioners namely Chandershekhar and Vinod Kumar, who are behind bars since 03/04.02.2024, have approached this Court in the instant proceedings filed under Section 439 Cr.P.C. for grant of regular bail in case FIR No.14/2024 dated 02.02.2024. registered at Policed Station ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -2- Barotiwala, District Solan, H.P., under Sections 285, 336, 337, 338, 304-A, 308, 304 Part II of IPC & Section 92 of Factories Act, .
1948,
2. Pursuant to notices issued in the instant proceedings, respondent-State has filed as much as three status reports dated 03.04.2022, 03.05.2024 and 23.05.2024, respectively, perusal whereof reveals that on 02.02.2024 at 01:57 p.m. vide DDO No.14, Police received information that fire broken in a building near Columbus Factory. After receipt of aforesaid information, Police reached the spot and found that incident of fire had taken place in Company namely 'M/s N.R. Aromas', as a result thereof, many workers were injured and had been taken to Brooklin Hospital and ESIC, Khatha for treatment.
3. Worker namely Satinder, who at that relevant time was working in the factory concerned, got his statement recorded under Section 154 Cr.P.C., alleging therein that accident of fire occurred on account of rash and negligent act of the management of the Company. He alleged that on 02.02.2024 at about 01:30 p.m., he after having finished his lunch came back on duty and noticed smoke coming out of the stairs. He disclosed to the Police that when he opened the gate, he saw smoke as well ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -3- as fire-flames and as such, he shut the door. He further disclosed that apart from him, Supervisor namely Ajay along .
with other few workers were also present on the spot. On coming to know about the fire in the factory, panic and chaos spread and he as well as his wife, who was also working in the Company, jumped from the first floor and received injuries. He reported to the Police that many other workers jumped out of the window and saved their lives, whereas persons working in the basement were trapped in fire. Complainant disclosed to the Police that 80-90 workers (male and female) were working in the factory at the time of alleged incident of fire, but some of them were unable to come out, as a result thereof, they suffered grievous injuries. He stated in the complaint that he came to know that some of the employees, who had jumped from the first/second floor are under treatment and admitted at Brooklin Hospital and ESIC Khatha, whereas, two persons namely Charan Singh and Pinky had been referred to PGI, Chandigarh, where Pinky has succumbed to the injuries. Besides above, aforesaid complainant alleged that highly inflammable substances are used in factory and a little negligence can cause fire and danger to the lives of the worker. He alleged that incident of fire took ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -4- place on account of negligence of the Company, which had not made adequate arrangement for keeping the highly inflammable .
substance at appropriate place/store.
4. On the basis of aforesaid statement recorded by complainant named hereinabove under Section 154 Cr.P.C., Police initially lodged FIR, as detailed hereinabove, under Sections 285, 336, 337 and 304 of IPC, against bail-petitioners as well as other accused namely Nilesh Patel, Sidharth Patel and Milan Patel, but subsequently, during investigation, after finding negligence of an employee namely Harsh, which caused fire, Police incorporated Section 304-A of IPC and arrested Harish under Section 285, 336, 334, 338 and 304-A of IPC, however, he was later enlarged on bail by Police. Co-accused namely Nilesh Patel, Sidharth Patel and Milan Patel are on interim bail, pursuant to order passed by Co-ordinate Bench of this Court in a petition filed under Section 438 Cr.P.C., whereas, present bail petitioners, who at that relevant time were working as Plant Head and Assistant Plant Head in the Company concerned are behind bars. Since Challan stands filed in competent Court of law and nothing remains to be recovered from the bail petitioners, they ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -5- have approached this Court in the instant proceedings for grant of regular bail.
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5. While fairly acknowledging factum with regard to filing of Challan in the competent Court of law, Mr. Vishal Panwar, learned Additional Advocate General submitted that though, nothing remains to be recovered from the bail petitioners, but keeping in view the gravity of offence, alleged to have been committed by them, they do not deserves any leniency, rather need to be dealt with in accordance with law.
While making this Court peruse status reports as well as other material adduced on record, Mr. Panwar further contended that there is overwhelming evidence adduced on record by the Investigating Agency, suggestive of the fact that both the bail petitioners, who at that relevant time, were the Incharge of the Plant, had not taken adequate steps to ensure safety of workers, working in the Factory. Mr. Panwar further submitted that as per investigation, drums of highly inflammable chemical were stored but without adequate care and caution. Mr. Panwar further stated that as per statements made by complainant as well as other workers, working in the factory, workers trapped in ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -6- fire were unable to leave the premises of the Factory, on account of disorderly stacking of drums filled with chemicals.
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6. While referring to the statements made by some of the workers, Mr. Panwar also attempted to argue that though exit gates were available in the Factory premises, but since those were found closed, workers trapped in fire were unable to leave the premises, as a result thereof, they received grievous injuries.
Lastly, Mr. Panwar stated that as many as nine people lost their lives in the alleged incident and approximately 35 people received injuries, on account of carelessness of the officers responsible for management of the Factory and as such, no illegality can be said to have been committed by the Police while registering case under Section 304 Part II of IPC against the bail-petitioners because they had definite knowledge that mishandling, if any, of the chemical stored in the Factory premises, may cause serious injury to the workers as well as property of the Factory in question, but yet, they failed to take appropriate steps for the storage/handling of highly inflammable chemical.
7. To the contrary, Mr. Ajay Kochhar, learned Senior Counsel representing the petitioner(s) while refuting aforesaid submissions made by Mr. Vishal Panwar, learned Additional ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -7- Advocate General, stated that no case much less under Section 304 Part II is made out against bail-petitioners as well as other .
co-accused because there is nothing on record to suggest that petitioners as well as other co-accused, named in the FIR, had definite knowledge, if any, that stacking of drums of chemical, may cause death or injury to the workers, rather, evidence collected on record by the Investigating Agency itself suggest that unfortunate incident happened on account of negligence of one worker namely Harish, who was assigned the job of heating the chemical, which was later to be used for production of perfume.
8. While making this Court to peruse status report dated 23.05.2024, Mr. Kochhar contended that as per own case of prosecution, alleged incident occurred on account of sheer negligence of co-accused Harish, who already stands enlarged on bail. While making this Court peruse statements made by various workers to the Police, Mr. Kochhar further submitted that emergency exit doors were very much available in the Factory premises and some of the workers trapped in fire, actually used the same, but since explosion took place in ground floor, workers working in the basement were unable to come out.
::: Downloaded on - 17/06/2024 20:29:59 :::CIS -8-9. While refuting the contention of learned Additional Advocate General that drums containing inflammable chemical .
were not stacked properly, Mr. Kochhar invited attention of this Court to the statements made by the workers to contend that some of the workers were able to come out using corridors, exit gates and emergency doors. Mr. Kochhar further contended that no doubt, bail-petitioners were the overall Incharge of the management being Plant Head and Assistant Plant Head, but certainly, they cannot be made liable for death of some of the workers, especially when it has come in the investigation that incident of fire took place on account of negligence of one of the worker namely Harish, who already stands enlarged on bail. Mr. Kochhar stated that though there is no material, even to suggest case that case, if any, is made out under Section 304(A), but by no stretch of imagination, case if any, can be made out under Section 304 Part II against bail-petitioners, because there is no evidence collected, suggestive of the fact that petitioner had knowledge that act of manufacturing perfume in the Company may cause death of the workers, working in the company. He stated that it is not in dispute that Factory in question had been manufacturing perfumes for more than sixteen years and since ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -9- inception of Company, work of heating chemical was being done by skilled workers including Harish.
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10. To substantiate his aforesaid submission, Mr. Kochhar invited attention of this Court to various judgments passed by Hon'ble Apex Court as well as other High Court's, including this Court in case titled as Rohit Suri and Others Vs. State of Himachal Pradesh, Criminal Misc. Petition (Main)
11. to No.532 of 2022 decided on 26.04.2022.
While making this Court read judgment, pressed into service, which shall be taken note in later part of the judgment, Mr. Kochhar vehemently argued that to attract provision contained under Section 304 IPC, which provides for punishment of culpable homicide not amounting to murder, prosecution is required to prove that accused charged with aforesaid provision caused death of the person concerned by doing act with the intention of causing death or causing such bodily injury as is likely to cause death or if the act is done with the knowledge that it is likely to cause death by such act. Mr. Kochhar further submitted that there is nothing in the investigation, suggestive of the fact that company was being run in violation of various norms, prescribed by various authorities. He submitted that NOC ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -10- of the Fire Department was very much valid at the time of unfortunate incident. Lastly, Mr. Kochhar submitted that no .
fruitful purpose, otherwise would be served by keeping the bail petitioners behind bars for indefinite period during trial, whose guilt, if any, is yet to be established on record, by leading cogent and convincing evidence. He submitted that bail-petitioner being responsible persons shall always remain available for investigation as well as trial, as and when called by Investigating Agency and in that regard, Court may impose stringent conditions.
12. Having heard learned counsel representing parties and peruse material available on record, this Court finds that petitioners herein, at the time of alleged incident, were admittedly looking after the affairs of the Company being Plant Head and Assistant Plant Head. It is also not in dispute, rather stands established on record that at the time of alleged incident, Factory in question i.e. M/s N.R. Aromas had valid permission to manufacture perfume. It is also not in dispute that N.O.C. from the Fire Department was valid till 23.03.2025, meaning thereby, all safety requirements, as suggested by Fire Department, were very much in place at the time of alleged incident.
::: Downloaded on - 17/06/2024 20:29:59 :::CIS -11-13. As per own case of prosecution, incident of fire took place in the Factory in question on account of negligence of one .
of the worker namely Harish, who on the date of alleged incident, was assigned duty of heating up the chemical. As per statements given by the workers working in the Factory and co-accused Harish, on 02.02.2024, drum containing 170 kilogram of chemical was being heated by Harish and thereafter, same was to be put in the small packets. Since, considerable time was to be consumed in heating the chemical, above named Harish at around 01:30 p.m. left the spot for having his lunch but unfortunately in the meantime, chemical got fire, which subsequently engulfed the entire factory.
14. Having scanned three status reports in its entirety, this Court is not able to find out the actual cause of fire. Though, repeatedly it has been stated in the status report that fire took place on account of heating of chemical by Harish, but no specific reason, if any, has been assigned for catching of fire by the chemical. It has been stated in the status report that when Harish came back after having finished his lunch, he after having noticed smoke, switched off the electric point, but it has ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -12- been not stated specifically that fire, if any, took place on account of spark from the electric point.
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15. As per statement given by complainant under Section 154 Cr.P.C., he after having witnessed smoke coming out from the premises, opened the door and found fire-flames, but even he has not stated specific reason, if any, for the fire. As per status report, fire broke in the premises after switching off electric point. No doubt, on account of unfortunate incident of fire, many workers received injuries and some of them lost their lives, but having scanned material made available before this Court, this Court is persuaded to agree with Mr. Ajay Kochhar, learned Senior Counsel representing petitioner(s) that there is no evidence adduced on record till date by prosecution, suggestive of the fact that incident of fire took place on account of negligence, if any, of the bail petitioners, rather, same can be said to have been happened on account of negligence of Mr. Harish, who was otherwise duty bound to remain present on the spot, till the time, chemical in question was properly heated.
16. Investigation clearly reveals that Factory in question had been making perfumes using highly inflammable chemicals for more than sixteen years and process/work of heating ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -13- chemical was being performed by Harish as well as other workers, who with the passage of time had acquired significant .
experience in the field. Though, it has been stated in status report that workers received injuries in the unfortunate incident and some of the workers lost their lives on account of mismanagement of the Factory premises, but having perused statements made by some of the workers to the Police, which was made available to this Court during proceeding of the case, this Court finds that many workers working at that relevant time saved their lives by using emergency exit doors as well as corridors.
17. Though, Mr. Vishal Panwar, learned Additional Advocate General vehemently argued that workers were trapped in Factory on account of disorderly stacking of the drums in the corridors, but such submission of him does not appear to be correct. It is not in dispute that workers, who lost their lives in the unfortunate incident were working in the ground floor, where actually explosion took place. It is none of the case of the Investigating Agency that Factory in question was being run unauthorizedly and there was no permission granted by the authority concerned, rather, investigation itself reveals that ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -14- emergency exit doors were very much available and adequate provisions for fire safety were also in place.
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18. Initially, Police after having recorded statement of complainant named above, registered case against petitioner(s) as well as other co-accused under Sections 285, 336, 337 and 304 of IPC, but subsequently concluded in the charge-sheet that petitioners have committed offence under Sections 285, 336, 337, 338, 304-A, 308 and 304 Part II of IPC & Section 92 of Factories Act, 1948, which provides for punishment of culpable homicide not amounting to murder. To attract aforesaid provision of law, prosecution is under obligation to prove the accused charged with such Section caused death of the person concerned by doing act with the knowledge that it is likely to cause death or causing such bodily injury as is likely to cause death.
19. Having perused aforesaid provision of law, coupled with the evidence adduced on record by the Investigating Agency, this Court is persuaded to agree with Mr. Kochhar, learned Senior Counsel representing petitioner(s) that no case much less under Section 304 Part II is made out against the petitioner for the reason that at present, there is nothing collected on record ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -15- by the Investigating Agency, suggestive of the fact that petitioner(s) being Plant Head and Assistant Plant Head had .
intention and knowledge that act of making perfume by using aromatic chemical can cause death of the persons responsible for manufacture of such perfume. Merely use of highly inflammable chemical itself cannot be a ground to attract provision under Section 304 Part II, especially when the Company concerned had permission from the competent authority to use such chemical for production of perfume. Company had been using aromatic chemical for manufacture of perfume for more than 16 years and during aforesaid period, no untoward incident had ever happened. It is not in dispute, rather stands duly established on record that Management of the factory in question had made adequate arrangements for the safety and security of the workers working in the Company by providing emergency exit doors as well as placing fire extinguishers at the appropriate places.
Since, it is apparent from the statement made by the workers that they saved their lives by using emergency exit doors and the corridors, this Court is not persuaded to agree with the contention of Mr. Vishal Panwar, learned Additional Advocate General that workers trapped in fire were unable to use exit ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -16- doors and corridors, on account of disorderly stacking of the drums containing highly inflammable chemical. Otherwise also, .
mere stacking of drums containing highly inflammable chemical by Management in the Factory premises cannot be a ground to conclude knowledge of the petitioners that the act of storing chemical, which is otherwise required for production of perfume, would cause death of the workers working in the premises.
20. In this regard, reliance is placed upon judgment passed by Hon'ble Apex Court in case titled as Keshub Mahindra and Others Vs. State of Madhya Pradesh along with other connected appeals 1996 (6) SCC 129. In the aforesaid case, Hon'ble Apex Court had an occasion to deal with the accused named in Bhopal Gas Tragedy case, where on account of gas leakage, more than 3000 people lost their lives. In the aforesaid case decided by the Hon'ble Apex Court, highly dangerous and toxic gas called MIC escaped from the tank of the Bhopal Factory, as a result thereof, 3,828 human beings lost their lives, whereas permanent injuries were caused to 18922 human beings, Police after having noticed aforesaid incident of gas leakage, registered case against the Management as well as other officials working at the Plant in Bhopal under Section 304- ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -17- A IPC, which subsequently came to be converted to 304 Part II.
Hon'ble Apex Court while hearing criminal appeals filed by some .
of the officials specifically elaborated upon the scope of Section 304 Part II and held as under:
"20. It, therefore, becomes necessary for us now to address ourselves on this moot question. As noted earlier the main charge framed against all these accused is under Section 304 Part II IPC. So far as Accused 2, 3, 4 and 12 are concerned they are also charged with offences under Sections 326, 324, IPC and 429 IPC read with Section 35 IPC while Accused 5 to 9 are charged substantially with these offences also. We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. A look at Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the accused concerned is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charged offences would fall under Section 304 Part II. 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 relied upon for framing such a charge against the accused concerned 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. In this connection we have to keep in view Section 299 of the Penal Code, 1860 which defines culpable homicide. It lays down that:"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."Consequently the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the trial court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prima facie that on that fateful night when the Plant was run at Bhopal it was run by the accused concerned with the knowledge that such running of the Plant was likely to cause deaths of human beings. 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 ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -18- accused in Tank No. 610 could not even prima facie suggest that the accused concerned thereby had knowledge that they were likely to cause death of human beings. In fairness to the 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. 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. Consequently in our view taking the entire material as aforesaid on its face value and assuming it to represent the correct factual position in connection with the operation of the Plant at Bhopal on that fateful night it could not be said that the said material even prima facie called for framing of a charge against the accused concerned under Section 304 Part II IPC on the specious plea that the said act of the accused amounted to culpable homicide only because the operation of the Plant on that night ultimately resulted in deaths of a number of human beings and cattle. It is also pertinent to note that when the complaint was originally filed suo motu by the police authorities at Bhopal and the criminal case was registered at the Police Station Hanumanganj, Bhopal as Case No. 1104 of 1984 it was registered under Section 304-A of the IPC. We will come to that provision a little later. Suffice it to say at this stage that on the entire material produced by the prosecution in support of the charge it could not be said even prima facie that it made the accused liable to face the charge under Section 304 Part II. In this connection we may refer to a decision of the Calcutta High Court to which our attention was drawn by the learned Senior Counsel, Shri Rajendra Singh for the appellants. In the case of Adam Ali Taluqdar v. King- Emperor [AIR 1927 Cal 324 : 31 CWN 314 : 28 Cri LJ 334] a Division Bench of the Calcutta High Court made the following pertinent observations while interpreting Section 304 Part II read with Section 34 IPC:
"Although to constitute an offence under Section 304, Part 2, there must be no intention of causing death or such injury as the offender knew was likely to cause death, there must still be a common intention to do an act with the knowledge that it is likely to cause death though without the intention of causing death. Each of the assailants may know that the act, they are jointly doing, is one that is likely to cause death but have no intention of causing death, yet they may certainly have the common intention to do that act and therefore Section 34 can apply to a case under Section 304, Part 2."
Once we reach 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 could not be even charged for culpable homicide and consequently there would be no question of attracting Section 304 Part II against the accused concerned on such material. When on the material produced by the prosecution no charge could be framed against any of the accused under Section 304 Part II there would ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -19- remain no occasion to press in service the applicability of Section 35 IPC in support of such a charge for those accused who were not actually concerned with the running of the Plant at Bhopal, namely, Accused 2, 3, 4 and 12.
21. In the aforesaid judgment, Hon'ble Apex Court .
categorically concluded that to constitute an offence under Section 304 Part II, there must be no intention of causing death or such injury as the offender knew was likely to cause death, there must still be common intention to do act with the knowledge that is likely to cause death, though without the intention of causing death. In the case before the Hon'ble Apex Court, case of the prosecution was that defects responsible for leakage of poisonous gas was very much in the knowledge of the Management, but yet no steps were taken to cure them. Hon'ble Apex Court having perused evidence collected on record, specifically concluded that persons responsible for the management of the Company had no definite knowledge about the defect in the functional plant, as such, they otherwise could not be charged with offence under Section 304 Part II.
22. Aforesaid judgment passed by Hon'ble Apex Court in Union Carbide case subsequently came to be followed in number of cases. In one of the case titled K.P. Ramaswamy Vs. Inspector of Police, Perundurai Police Station, Madras High ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -20- Court specifically dealt with Section 304 Part II while considering the prayer made by the accused under Section 438 Cr.P.C. for .
anticipatory bail, which reads as under:
"23. In Keshub Mahindra v. State Of M.P., 1996 SCC (Cri) 1124, on the night between 2.12.1964 & 3.12.1984, there was leakage of toxic gas known as MIC from the Union Carbide Company's Unit situate in Bhopal and the Bhopal gas disaster took place. Thousands and thousands of innocent persons and animals have lost their lives. Many got maimed. After investigation, Police filed Final Report for offences under Section 304 II, 326, 324, 429 r/w 35, I.P.C as against certain officials of the Company, who were directly involved in the day-to-day operation of the Company's unit in Bhopal and also against A-2, namely, Keshub Mahindra/Managing Director, who was residing in Bombay. Ultimately, A-2 questioned the framing of charge under Section 304 II, I.P.C as against him. The Hon'ble Apex Court quashed the charge under Section 304 II, I.P.C as against him on the ground that there was no commission of any act by him which has caused the death of the Bhopal gas victims.
24. In the said Bhopal Gas Tragedy case, the Hon'ble Apex Court observed as under:
"20. It, therefore, becomes necessary for us now to address ourselves on this moot question. As noted earlier, the main charge framed against all these Accused is under Section 304 Part II, I.P.C So far as Accused Nos. 2, 3, 4 & 15 are concerned they are also charged with offences under Sections 326, 324, I.P.C & 429, I.P.C, read with Section 35, I.P.C while Accused 5 to 9 are charged substantially with these offences also. We shall first deal with the charges framed against the concerned Accused under the main provisions of Section 304 Part II, I.P.C A look at Section 304, Part II shows that the concerned Accused can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the concerned Accused is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charged offences would fall under Section 304 Part II. 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 ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -21- homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied 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. In this connection we have to keep in view Section 299 of the Indian Penal Code which defines culpable homicide. It lays down that, "whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide".
Consequently the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the Accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the Trial Court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prima facie that on that fateful night when the plant was run at Bhopal it was run by the concerned Accused with the knowledge that such running of the plant was likely to cause deaths of human beings. 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 Tank 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. 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. 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."
::: Downloaded on - 17/06/2024 20:29:59 :::CIS -22-23. In aforesaid judgment, Madras High Court held that mere act of running of Plant, as per permission by the .
authorities, would not be a criminal act and even if it is presumed that it was a defective plant and it was dealing with very toxic and hazards substance like MIC, the mere act of storing such a material by the accused in tank could not prima facie suggest that concerned accused had knowledge that storage
24. to of such is likely to cause death of human beings.
In another case titled as Shamsher Khan Vs. State (NCT of Delhi) reported in (2000) 8 SCC 568, Hon'ble Apex Court elaborately dealt with the scope of Section 304 Part II and held as under:
"10. Appellant was convicted under Sec. 304 and 308 of IPC. Both the offences relate to commission and attempt to commit culpable homicide respectively. So culpable homicide is the common factor in both Courts. Section 299 of the Penal Code, 1860 defines culpable homicide, which has three alternative requirements. They are:-
1. Doing an act with the intention of causing death of a person, or
2. doing an act with the intention of causing such bodily injury as is likely to cause such death, or
3. doing an act with the knowledge that he is likely by such act to cause death of another person.
11. Learned counsel for the respondent State made an endeavour to bring the case within the ambit of the third alternative, as the case cannot possibly be brought under any of the other two. The act proved to have been committed by the appellant alongwith Babu Khan in this case is manufacture of explosive substances like bombs. Hence what is to be established is, the above act must have been done with the ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -23- knowledge that such act by itself was likely to cause death. If some other act had intervened which the offender did not do consciously which triggered the explosions that could not be counted as the act for that offender. No evidence had been let in by the prosecution to show that mere manufacture of such .
bombs is likely to cause death of any person, nor any evidence for showing that appellant had the knowledge that by manufacturing bombs death would possibly be caused to any human being without any other act being done."
25. While placing reliance upon aforesaid judgment passed by Hon'ble Apex Court in Shamsher Singh (supra), High Court of Madhya Pradesh in case titled as Sagar Yadav Vs. State of Madhya Pradesh in Misc. Criminal Case No.48844 of 2022, decided on 23.11.2022, held that once Factory was being run with all due permission and approval of the authorities and service approval was issued by the authority prior to the incident, coupled with the fact that adequate measures for fire safety were taken, no case under Section 304 Part II is made out, rather, case if any, can be made out under Section 285 and 304- A of IPC.
26. In a case titled as Rohit Suri (supra), this Court had occasion to deal with the scope of Section 304 Part II, where it was held as under:
"9. Investigation in the case is complete and nothing remains to be recovered from the bail petitioners. It is also not in dispute that bail petitioners are in judicial custody. There is another aspect of the matter that at the first instance case under Sections 286, 337, 304A of IPC and Section 9 (C) of Explosives ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -24- Act 1884 was registered against the bail petitioners and other persons named in the FIR, but subsequently, police after having taken note of the fact that explosives substance was being made in the factory without there being license deleted the aforesaid Sections and re-registered the case against them under Sections .
304, 120B of IPC and Section 5 of the Explosives Substance Act 1908. Precise case of the prosecution in the case at hand is that crackers were being manufactured unauthorizedly in the premises where fire broke, but definitely there is nothing on record which can compel this Court to conclude/infer that explosives substance or special category explosive substance as defined in the Explosives Substance Act, 1908 were being manufactured or stored in the premises. Aforesaid observation made by this court gains significance in view of the statement made by the complainant under Section 154 of the Cr.PC that there was no provision/facility provided in the factory for manufacturing of crackers. If it is so, prosecution is under obligation to prove manufacturing, if any, of the explosives substance in the premises in question to attract the provisions contained under Section 5 of the Explosive Substances Act, which clearly provide that any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance without there being any authority shall be liable for imprisonment, which may extend to ten years. Status report filed by the respondent-State as well as record made available to this court nowhere reveals that explosives substance as defined under Section 2 of the Act ibid ever came to be recovered from the premises in question. Otherwise also, to attract the provisions contained under Section 304 of IPC, which provides for punishment for culpable homicide not amounting to murder, prosecution is required to prove that that bail petitioners caused death of workers working in the factory by doing an act with the intention of causing death or causing such bodily injury as is likely to cause death or if the act done with the knowledge that person is likely by such act to cause death. In the case at hand, though investigating agency has collected on record material to prove that factory was being run unauthorizedly, but definitely at this stage, there is no evidence collected on record to conclude that the bail petitioners had any intention or knowledge to cause death of the persons working in the factory. Whether death of the workers occurred on account of negligence of the bail petitioners, whereby they failed to provide /take adequate safety measures for their safety, is a question needs to be determined in the totality of facts the circumstances of the case."::: Downloaded on - 17/06/2024 20:29:59 :::CIS -25-
27. In the case at hand, save and except allegation of disorderly stacking of drums containing highly inflammable .
chemical, no material has been placed on record, suggestive of the fact that adequate steps for security and safety of the workers working in the Factory in question were not taken by the Management, rather, as per own case of the prosecution, factory was being run with the valid permission and adequate fire safety arrangements were much in place. Prima facie having taken note of material adduced on record by prosecution till date, this Court is persuaded to agree with Mr. Kochhar that no case is made out under Section 304 Part II IPC, if it is so, bail petitioners are entitled to bail, especially when Challan stands filed in the competent Court of law and nothing remains to be recovered from them.
28. Leaving everything aside, as per own case of prosecution, unfortunate incident of fire took place in the Factory on account of sheer negligence of co-accused Harish, who already stands enlarged on bail.
29. No doubt, nine peoples have lost their lives in the unfortunate incident, but that cannot be a sole ground to keep the bail petitioners behind the bars for an indefinite period. At ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -26- this stage, this Court is only required to see whether investigation is complete or is there anything required to be .
recovered from the accused. No doubt, this Court while considering prayer made by the bail petitioners is also required to see the gravity of offence alleged to have been committed by them, but that alone cannot be decisive ground to deny the bail, rather competing factors are required to be balanced by the court while exercising its discretion. Needless to say, object of the bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been held as under:-
"The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -27- from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been .
convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."
30. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
31. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:
"This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -28- before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a .
lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."
32. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:
"(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail."
33. Hon'ble Apex Court as well as this Court in catena of judgments have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -29- accordance with law apprehension expressed by learned Deputy Advocate General that in the event of bail petitioners being .
enlarged on bail, they may flee from justice or may temper with the evidence, can be best met by putting bail petitioners to stringent conditions.
34. The Hon'ble Apex Court in judgment dated 18.4.2022, Jagjeet Singh and Ors v. Ashish Mishra @ Monu and Anr, r to passed in Criminal Appeal No. 632 of 2022 has held as under:
"40. Having held so, we cannot be oblivious to what has been urged on behalf of the Respondent-Accused that cancellation of bail by this Court is likely to be construed as an indefinite foreclosure of his right to seek bail. It is not necessary to dwell upon the wealth of case law which, regardless of the stringent provisions in a penal law or the gravity of the offence, has time and again recognised the legitimacy of seeking liberty from incarceration. To put it differently, no accused can be subjected to unending detention pending trial, especially when the law presumes him to be innocent until proven guilty. Even where statutory provisions expressly bar the grant of bail, such as in cases under the Unlawful Activities (Prevention) Act, 1967, this Court has expressly ruled that after a reasonably long period of incarceration, or for any other valid reason, such stringent provisions will melt down, and cannot be measured over and above the right of liberty guaranteed under Article 21 of the Constitution (See Union of India v. K.A. Najeeb, (2021) 3 SCC 713, ¶ 15 & 17)."
35. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found ::: Downloaded on - 17/06/2024 20:29:59 :::CIS -30- guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the .
accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case.
36. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioners have carved out a case for grant of bail, accordingly, the petitions are allowed and the petitioners are ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing personal bond in the sum of Rs.5,00,000/- each, with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:
a. They shall make themselves available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;::: Downloaded on - 17/06/2024 20:29:59 :::CIS -31-
b. They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c. They shall not make any inducement, threat or .
promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and d. They shall not leave the territory of India without the prior permission of the Court.
e. They shall hand over their passports to the investigating Agency.
37. It is clarified that if the petitioners misuse their liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.
38. Any observations made hereinabove shall not be construed to be a reflection on the merits of the main case and shall remain confined to the disposal of these applications alone.
39. The bail petitions stand disposed of accordingly.
40. The petitioners are permitted to produce copy of order downloaded from the High Court website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
June 11, 2024 (Sandeep Sharma),
Rajeev Raturi Judge
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