Curative petition,with a prayer on their lips

Moreover,if the Supreme Court chooses at the end not to oblige the curative petition,the Sessions judge would find it an impossible burden on himself to re-look the evidence in an appeal and commit the accused for trial under Section 304 Part II IPC (culpable homicide not amounting to murder). Thus,the Bhopal gas tragedy has come a full circle.

The Centre and the MP government differ. The Centre is keen about the curative way,but the state is taking no risk and is diligently following the recommendations of its own expert panel led by Additional Solicitor General Vivek Tankha to do both curative and a Sessions appeal. As much as it suggests the curative petition as a road ahead for the over 15,000 victims,Tankha’s panel argues that the 1996 SC verdict to quash Section 304 Part II is no bar for a trial judge to dispassionately weigh the evidence before him and institute fresh charges,graver ones,if necessary.

His report quotes the SC’s advice to trial judges in Thakur Ram vs State of Bihar of 1966 to not let superior courts’ decisions stand in way of justice. “It has to be borne in mind that the ultimate duty of weighing the evidence is cast on the court which has the jurisdiction to try an accused person,” the SC had observed.

So,is the appeal process a “better option” than the curative petition? Union Law Minister Veerappa Moily shortly replies to The Indian Express: “We know what we have to do.”

K T S Tulsi,the victims’ lawyer in a separate curative petition,likely to be filed Monday,says a Sessions appeal is a “waste of time”. “What else is there to do in this situation? The appeal process will take another 26 years,” he says,defending the curative. He says the harm was done in 1996: “Not only did the SC quash the CBI charge under Section 304 Part II,but also forbid the trial judge from charging the accused with any other criminal provisions except three — each carrying a punishment of 3-6 months. So what could a trial court judge do but obey the SC.”

“Not many judges at the Sessions level would risk turning their backs on ‘judicial discipline’ and look beyond the parameters drawn by the SC’s ‘mistake’ of a judgment made in 1996,” he says.

Bhopal Chief Judicial Magistrate M P Tiwari’s conduct proves Tulsi’s point. On May 5,2010,Tiwari dismissed an application under Section 216 CrPC filed by victims led by Abdul Jabbar and N D Jaiprakash,pleading with the court to “alter or add” the charge to culpable homicide in the light of witness depositions and evidence painstakingly gathered over the 26 years of trial proceedings.

The Magistrate instead reasoned that “no court” can ever cross a SC judgment. He observed that “now after 26 years this application is at hand,which means the case has to be started right from the beginning”. The CBI too had not then supported the victims’ move.

But Tankha’s autopsy questions the attitude of the Bhopal CJM — when faced with more evidence post the 1996 judgment indicating at more severe charges — to not immediately transfer the case to a Sessions Court.

“It was the trial court’s duty to do so once it was sufficiently established that the evidence produced disclosed offences more severe than what could be tried by the present forum. The 1996 judgment was not a bar in any way for the trial court to do so. The trial court committed an error of law,” opines the panel.

Former SC judge Justice Krishna Iyer says an appeal in a Sessions Court is possible. “It can be done,but will need a serious judge. A lot depends on the person.” He adds that a curative petition would “hardly survive”.

Former chief of Commission for Reforms in Criminal Justice System Justice V S Malimath says all the government would achieve by filing the curative petition is to “say that we had gone to the SC and done our best”.