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Secondly : That on the above date and at the above place, above co-accused persons by allowing to escape from the above tank the corrosive substance known by the name of MIC gas, knowing that it was likely to cause grevious hurts, thus voluntarily (as defined U/S 39 IPC) caused grevious hurts to 21694 or more human beings and you sharing this common knowledge with them did not do anything to avoid the said escape of gas, thus you thereby committed on each count an offence punishable U/S 326 R/W Sec, 35 IPC and within the cognizance of the Court of Sessions, Thirdly : That on the above date and at the above place, above co-accused persons by allowing to escape from the above tank the corrosive substance known by the name of MIC gas, knowing that it was likely to cause hurts, thus voluntarily (as defined U/S. 39 IPC) caused hurts to 8485 or more human beings and you sharing this common knowledge with them did not do anything to avoid the said escape of gas, thus you thereby committed on each count an offence punishable U/S. 324 R/W Sec. 35 IPC and within the cognizance of the Court of Sessions.

Secondly : That you on the above date and at the above place by allowing to escape from tank No. 610 of the A.P. Division Plant of UCIL, a corrosive substance known by the name of MIC gas, knowing that it was likely to cause grevious hurts, thus voluntarily (as defined U/S, 39 IPC) caused grevious hurts to 21694 or more human beings and, thereby committed on each count an offence punishable U/S. 326 IPC and within the cognizance of the Court of Sessions.

Thirdly: That on the above date and at the above place by allowing to escape from tank No. 610 of .A.P. Division Plant of UCIL, a corrosive substance known by the name of MIC gas, knowing that it was likely to cause hurts, thus voluntarily (as defined U/S. 39 IPC) caused hurts to 8485 or more human beings and thereby committed on each count an offence punishable U/S. 324 I.P.C. and within the cognizance of the Court of Sessions, Fourthly; That on the above date and at the place by allowing to escape from tank No. 610 of the A.P. Division Plant of UCIL, knowing that it was likely to cause death of animals, committed mischief by killing thereby 2544 or more animals of various descrip-tions each valuing more than Rs. 50 and thereby committed on each count an offence punishable U/S. 429 IPC and within the cognizance of the Court of Sessions."Identical charges were framed against accused No. 6 R.B. Roy Choudhary, accused No. 7 S.P. Choudhary, accused No. 8 K,V, Shetty and accused No. 9 S.1. Qureshi while UCIL, Calcutta accused No, 12 had to face the following charges :

Learned senior counsel Shri Asok Desai appearing for accused No. 2 Keshub Mahindra, learned senior counsel Shri Nariman, appearing for accused No. 3 V.P. Gokhale and learned senior counsel Shri Rajendra Singh, appearing for the remaining accused vehemently contended that taking the case of the prosecution at the highest as reflected by the contents of the chargesheet and the supporting material it could not be even prima facie said that the concerned accused were guilty of offence of culpable homicide not amounting to murder as envisaged by Section 304 Part II, IPC with which they are charged. That there was no question of the concerned accused having done any act on that fateful night at Bhopal which was done with the knowledge that they were likely by such act to cause death and consequently they could not have been charged on the material produced by the prosecution before the Trial Court at this stage of the trial for the offence of culpable homicide not amounting to murder. It was also submitted that on the same reasoning they could not have been charged for offence under Section 326 IPC for voluntarily causing grievous hurt or for that matter for the offence under Section 324 for voluntarily causing hurt by dangerous means. It was also contended that on the same parity of reasoning no case is made out against the concerned accused under Section 429 IPC for having committed mischief by killing, poisoning or maiming any animals. It was also submitted that so far as accused Nos, 2, 3 and 4 were concerned they were stationed at Bombay and they were not concerned with the day to day working of the Plant at Bhopal. Conse-quently there was no question of framing any charge against them for the aforesaid offences read with Section 35 of IPG as there was no evidence whatsoever for even alleging against these accused that they had any criminal knowledge in connection with the misshap that occurred on that fateful night at Bhopal. It was also contended by the aforesaid learned senior counsel that even lesser charge under Section 304-A, IPC also could riot have been framed on this material as nothing was alleged by the prosecution at this stage about any proximate act of the negligence on the part of the concerned accused which had resulted into this accidental tragedy. That if at all it was an unfortunate accident which had taken heavy toll of human lives and cattle wealth, however., none of the accused could be held criminally liable for the said accident. It was, therefore, contended that the charges as framed against the concerned accused are required to be quashed and the High Court had erred in not exercising its jurisdiction in that behalf.

We may now turn to the charges framed against the concerned accused- appellant under Sections 324 and 326 of the IPC. Section 324 deals with 'voluntarily causing hurt by dangerous weapons Or means' while Section 326 deals with 'voluntarily causing grievous hurt by dangerous weapons or means". Both these sections for their application require material against the accused on the basis of which it could be said that the accused had voluntarily caused such hurt or grievous hurt, as the case may be. Section 321 defines 'voluntarily causing hurt' and provides that, 'whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt". Similarly Section 322 deals with 'voluntarily causing grievous hurt' and lays down that, 'whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt". For applicability of these Sections the material relied upon by the prosecution in support of such charges must show that the con-cerned accused had committed the act complained of at least with the knowledge that by- such act he was likely to cause hurt or grievous hurt to the victim, We have already indicated hereinabove that the material pressed in service by the prosecution for framing such charges against the accused falls short of indicating that the act of running the plant on that fateful night at Bhopal which in its turn involved storing and utilising highly dangerous and volatile substance like MIC in their storage tank No. 610 could not even prima facie be said to have been done with the knowledge that by such act itself simple hurt or grievous hurt was likely to be caused to anyone. Consequently on such material even charge under Sections 324 and 326, IPC could not have been framed against the concerned accused. Once this conclusion is reached there would also remain no occasion to press in service against the absentee accused Nos, 2, 3, 4 as well as 12 Section 35 IPC which the prosecution sought to press in service along with substantive Sections 324 and 326 IPC. In fact on the material as placed by the prosecution in support of these charges if a charge under Section 304 Part II cannot be framed then on the parity of reasoning no charge under Sections 324 and 326 could also be framed. That takes us to Section 429, IPC which deals with 'mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees'. For application of this Section the material must indicate that the concerned accused had com- mitted mischief in the first place. The term 'mischief is defined by Section 425 IPC. It lays down that, 'whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief"- Before the said Section is pressed in service the material relied upon by the prosecution must indicate even prima facie that the concerned accused by running the plant at Bhopal on that fateful night had knowledge that by running such plant they were likely to cause wrongful loss or damage to the public or to any person. It is difficult to appreciate how said provision can be pressed in service on the basis of the material referred to hereinabove which does not whisper or even prima facie indicate how by running such a plant wherein highly dangerous and volatile substance like MIC was stored in tank No. 610 the accused had the knowledge that by that act alone they were likely to destroy anybody 's property or cause wrongful loss or damage to any person. Once the applicability of Section 425, IPC dealing with 'mischief is ruled out on such material there would remain no occasion to invoke Section 429 which for its applicability requires the prosecution to show in the first instance any material against the concerned accused indicating the commission of mischief by the accused. In our view, therefore, on the material pressed in service by the prosecution for framing charges against the accused no charge could have been framed against the concerned accused either under Section 304 Part II of under Section 324, 326 or 429, IPC with or without the aid of Section 35, IPC. On these findings of ours the appeals will be required to be allowed and all these charges will have to be quashed.