Milind Shivram Bapat vs State Of Maharashtra
2023 Latest Caselaw 7309 Bom

                       (26)-WP-1689-23.doc.


                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          Digitally
                                          CRIMINAL APPELLATE JURISDICTION
          signed by
          BALAJI
BALAJI    GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL   Date:
          2023.07.26
          16:14:51
          +0530
                                        CRIMINAL WRIT PETITION NO.1689 OF 2023

                       Milind Shivram Bapat                                          ..Petitioner
                            Versus
                       The State of Maharashtra                                      ..Respondent

                       Mr. Siddharth A. Mehta, for the Petitioner.
                       Ms. M. H. Mhatre, APP for the Respondent/State.

                                                             CORAM : NITIN W. SAMBRE &
                                                                     R. N. LADDHA, JJ.

DATE : 24th JULY, 2023

P.C.

1. Shree Samarth Engineering, a partnership firm was created vide deed dated 10th August, 1992 (and amended on 9th April, 2003) in which the petitioner was shown as an active partner.

2. The said partnership underwent a modification vide deed dated 8th April, 2015. It is shown in clause (7) of the aforesaid amended deed of partnership that petitioner has become an inactive partner in the firm. The said firm was in the business of waste solvent distillation.

3. The incident occurred on 18th April, 2021 which has resulted into death of certain employees of the said company. As a sequel, Crime No.137 of 2021 punishable under Sections 304(II),

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338, 284, 285 r/w 34 of the IPC came to be registered on 7 th May, 2021.

4. Apart from claim of an inactive partner based on the aforesaid factual matrix of the modification of the partnership firm vide deed dated 8th April, 2015 the contentions are, petitioner cannot be held criminally liable for offence punishable under Sections 304(II), 338, 284, 285 r/w 34 of the IPC. A support is drawn from the judgment of Apex Court in the matter of Keshub Mahindra Vs. State of M. P. reported in (1996) 6 SCC 129, particularly, paragraph 20 which reads thus :-

"20. It, therefore, become 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 to 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

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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 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 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 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 prosecution it was not suggested and could not

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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 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 spacious 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 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 learned senior counsel Shri Rajendra Singh for the appellants. In the case of Adam Ali Taluqdar and Ors. v. King-Emperor, AIR (1927) Calcutta 324 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

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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 pf 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 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."

5. Apart from above, this Court on earlier occasion has also referred to judgment of Apex Court in the matter of Sham Sunder & Ors. Vs. State of Haryana reported in (1989) 4 SCC 630, so as to infer that a sleeping partner cannot be vicariously made liable in criminal law for whatever criminal acts committed by the other partners or the employees in charge of the day to day affairs of the business.

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6. Learned APP while countering aforesaid submissions submits that the FIR was lodged in view of the fact that the where the accident occurred the company has not only provided safety equipments and gadgets but also has not provided other security measures, equipments viz. which are necessary for the purpose of discharge of the duties in the waste solvent extraction process.

7. When confronted on the aforesaid position of law as reflected in the judgments (cited supra) and the failure of the petitioner to discharge the duties as an inactive partner which led to the registration of offence, learned APP informs that time be granted to prepare and address on the issue of discharge of duties by the inactive partners and for satisfaction of ingredients of offence under Section 304(II), 338, 284, 285 r/w 34 of the IPC.

8. By way of a last chance, adjourned to 1st August, 2023.

[R. N. LADDHA, J.]                             [NITIN W. SAMBRE, J.]




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