S.P. CHOUDHARY Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition has been filed under Article 226 of the Constitution of India by the petitioners, the ex employees of the Union Carbide, Bhopal against the order dated 22.3.2018 (Annexure P-1) passed by the learned Sessions Judge, Bhopal, whereby in the Criminal Appeals No.365 and 366 of 2010 arising out of judgment and order of conviction dated 7.6.2010 passed by the Chief Judicial Magistrate, Bhopal in Criminal Case No.8460/1996, the petitioners' application seeking directions to the Central Bureau of Investigation (for short "CBI") for production of case diary has been rejected.

(2.) In brief the facts of the case are that the criminal proceedings were initiated against the petitioners and the other persons in respect of Bhopal Gas Tragedy which took place in the intervening night of 2nd and 3rd December, 1984. The petitioners and the other five accused persons were tried and convicted by the Chief Judicial Magistrate, Bhopal in Criminal Case No.8460/1996 for commission of offence punishable under Section 304-A/35 and under Section 336 of IPC vide judgment dated 07.06.2010. Against the aforesaid judgment, criminal appeals have also been preferred in the year 2010 by the petitioners before the Sessions Court, Bhopal which are still pending. In the aforesaid appeals, on 30.8.2016 an application was filed by the petitioners for production of case diary alleging that the investigation conducted by the CBI in the case was malafide, malicious, motivated and fraudulent.

(3.) It is submitted by the learned counsel for the petitioners that the truth was deliberately suppressed in the case and in fact no investigation was carried by the CBI and the charge sheet was drafted as per the directives of the Government of India without application of mind by the Investigating Officer, who also appears to have no knowledge or understanding of most of its contents. It is further submitted that under Section 172(3) of Cr.P.C. the case diary could not be summoned by the accused persons, however, the non-production of case diary has led to serious prejudice to the fundamental rights of the accused persons. It is submitted that for the proper disposal of the criminal appeals and for doing the justice, it was incumbent for the lower appellate court to call for the case diary and ascertain the truth which has been deliberately suppressed. It is further submitted that the aforesaid application has been dismissed by the learned Judge of the trial Court simply on the ground that there is a clear bar under Section 172(3) of Cr.P.C. for use of the case diary by the accused or his agents, however, it is submitted that the same can be assailed under writ jurisdiction under Article 226 of the Constitution of India, as has been held by the Hon'ble Apex Court in the case of Khatri v. State of Bihar, reported in AIR 1981 SC 1068. It is submitted that the petitioners' application was not considered on merits and has been rejected by observing that the bar under Section 172 of Cr.P.C. does not operate in the writ jurisdiction under Article 226 of the Constitution of India.