WWW.LIVELAW.IN

MCRC-15788-2017 (SWARAJ PURI Vs ABDUL JABBAR)

18-09-2017 Mr. V.K. Tankha, learned senior counsel along with Mr. Ajay Gupta, advocate for the petitioner. The respondents are yet to be noticed. The matter is taken up as mention matter. Heard on I.A. No.17945/2017, an application for grant of stay. A grim tragedy of unprecedented nature occurred at Bhopal on the night intervening 02.12.1984 and 03.12.1984 wherein between 00:30 hours and 00:45 hours a highly dangerous and toxic gas called MIC (Methyl Iso-cynite) escaped from Tank No.E-610 from the Bhopal factory belonging to Union Carbide India Ltd. as a result of this leakage 3828 human beings lost their livesm while permanent injuries were caused to 18,922 human beings, temporary disablement was suffered by 7172 human beings, temporary disablement caused by permanent injury was suffered by 1313 persons while permanent partial disablement was suffered by 2680 persons. While 40 human beings suffered from permanent total disablement and the death toll of animals amounted to 2544. This ghastly tragedy has come to be known as “Bhopal Gas Tragedy”. [Keshub Mahindra v. State of MP, (1996) 6 SCC 129]

WWW.LIVELAW.IN

2. Learned CJM, Bhopal vide order dated 19.11.2016 passed in R.T. No.13751/2016 has registered the complaint case under Section 212, 217 and 221 of the IPC against the petitioner and co-accused. Criminal revision No.669/2016 filed by the petitioner and Criminal Revision No. 712/2016 filed by co-accused Moti Singh have been decided analogously by learned Special Judge [under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989] Bhopal. Vide order dated 24.08.2017 learned Special Judge dismissed the same affirming the order passed by learned CJM, Bhopal taking cognizance of offences as mentioned above. 3. The petitioner was the Superintendent of Police and co-accused Moti Singh was the Collector, Bhopal at the relevant time and Warren Anderson was the Chairman of the Union Carbide Corporation and indicated as accused No.10 in Criminal Case No.1104/1984 registered at police station – Hanumanganj. Criminal Complaint Case has been filed by the respondents before the CJM, Bhopal registered as Criminal Case (RT) No.13751/2016. The respondents/complainants alleged that the petitioner, the then Superintendent of Police and the coaccused, the then Collector of Bhopal were instrumental in releasing the main accused Warrent Anderson and sent him to Delhi. Warren Anderson was a citizen of America. From Delhi he left for America and escaped

WWW.LIVELAW.IN

from India. Therefore, the petitioner and co-accused helped him to flee from India and thereby misused their power and position and violated the law of land. Hence, the petitioner and co-accused have committed offence under Section 221 read with Section 34 of the IPC. 4. Challenge has been made to the same by preferring this petition under Section 482 of the Cr.P.C to invoke the extraordinary jurisdiction of this Court. Prayer has been made to quash the proceeding of Criminal Complaint Case (RT) No.13751/2016 on the ground that the complaint has been enormously delayed by about 26 years whereas cognizance can be taken under Section 468 of the Cr.P.C within three years of the date of offence. There is no application for condonation of delay. The fact of sending Warren Anderson (now dead) was never hidden by the petitioner. The complainants are activists. They know all the happenings even then they did not file any complaint till 14.06.2010. The complaint is based on surmises, contents of a book published newspapers reportings and certain interviews given to the electronic media which are not admissible in evidence. 5. On behalf of the petitioner, it is also argued that the matter pertains to the incident which took place almost 33 years ago. No one ever raised any finger about the act or conduct of the petitioner as Superintendent of Police

WWW.LIVELAW.IN

when the incident took place. The petitioner claims that the respondents filed the criminal case under Section 200 of the Cr.P.C. before the CJM, Bhopal on the basis of book published by Moti Singh, the then Collector, Bhopal. Neither the materials published in the book of the co-accused Moti Singh can be read in evidence nor the contentions of the co-accused can be used as evidence against the petitioner. It is vehemently contended that learned CJM neither asked for case diary nor for any police report, though criminal case has been instituted and tried and travelled up to the Supreme Court. 6. Learned senior counsel has referred paragraph 22 of the decision in the case of Keshub Mahindra v. State of MP, (1996) 6 SCC129 wherein Hon'ble the Apex Court held that “it is true that though originally the criminal case was registered for an offence under Section 304-A of the IPC, the Central Bureau of Investigation which took up the investigation thought it proper to press in service section 304 Part II and Sections 324, 326 and 429 of the IPC. Charges under these sections have been found to be unsustainable on the material produced by the prosecution on record in support of these charges.” 7. It is also contended that commission of enquiry was set up by the Government of M.P. which is called Kochar

WWW.LIVELAW.IN

Committee vide notification dated 25.08.2010 wherein the question No.4 was posed as what was the role of State Administration and others in the arrest, release and providing safe passage to Warrent Anderson leading to absconsion ? 8. Justice S.L. Kochar, Judge of the High Court of MP enquired into the above matter as of public importance. But despite the fact that this matter was enquired upon, the same has not been published. Alleged accused Warren Anderson was bailed out by the Supreme Court. The petitioner being officer of Government was under obligation to maintain law and order and to safeguard foreign nationals who could not be left at the mercy of the public. The public at that time was outraged and could have caused any untoward incident. It is further contended that even if, the content of the book and newspapers items are taken to be true, the petitioner was under obligation to safeguard Warren Anderson to avoid lynching by public. 9. It is also canvassed that the petitioner was a part of Indian Army duing 1971 and was an active participant in the War against Pakistan in the year 1971 in the Western Sector. The petitioner was given Gallantry (Bravery) Medal for providing immediate relief and aid to the affected citizen in the night of tragedy, without caring for his own safety and that of his family.

WWW.LIVELAW.IN

10. During course of arguments, it has been stated at the Bar that whatever the petitioner and co-accused had acted, they did it on the orders of higher authorities. Their act was done in discharge of public duty. Therefore, they are protected under the umbrella of Section 197 of the Cr.P.C. Let notice be issued to the respondents on payment of PF within six working days, by registered post with acknowledgement due as well as ordinary mode, returnable within four weeks. List the case after four weeks. Meanwhile, it is directed that proceeding in Criminal Complaint Case (RT) No. 13751/2016 pending before CJM, Bhopal shall remain stayed till next date of hearing. C.C. as per rules. (SUSHIL KUMAR PALO) JUDGE

ks