Mitigating Circumstances In Favour Of Accused Dilute Gravity In Relation To Their Role: AP HC Grants Bail To LG Polymers' CEO, 11 Others In Vizag Gas Tragedy [Read Order]

The Andhra Pradesh High Court on Tuesday granted bail to as many as 12 from the management of LG Polymers, including the CEO, accused in connection with the Vizak Gas Leak tragedy in May.

"It is clear from the material placed by the prosecution that at possibly the earliest point of time, the company had brought to the notice of the district administration, its difficulty in managing the bulk storage of Styrene in view of the lockdown directive", observed the court, adding that it is a prima facie inference to draw, in order to assess the gravity of the instance.

"Mitigating factors dent the gravity to certain extent", ruled Justice M. Venkataramana in granting the bail.

Narrating that the unfortunate incident occurred during the wee hours of May 7, the Single Judge opined that the effective shut-down of the plant for a considerable period, even at this stage, cannot be overlooked, particularly having regard to the sensitive nature of operation carried out. "The very nature of this unit, based on chemical technology, makes out lurking threat or danger", said the Court.

The Single Bench noted that the report of the Director of Factories, though untested, did indicate that those responsible for maintenance of this plant during that night, acted in the manner expected. Some of them are the accused before the court. The report further indicates that required alarms were also alerted on account of leakage of vapours. Statements recorded, which are part of the report, show that those in charge of maintenance of that plant during that night did hint that on account of such a sudden eruption, they were in a state of confusion and overwhelmed. They were unable to comprehend what was going on by the turn of events. The Single Bench further considered that no instance of an incident involving the whole or any part of this unit earlier of this nature or of a lesser degree, should have impacted the responses and reflections of those concerned, when this incident occurred, being an unexpected event.

"When considered against this backdrop, it is rather difficult to infer that those in charge of the plant during that night had ever an opportunity of knowing or having reason to believe as to the impact of such happenings of the incident itself", the bench said.

The Court continued to note that the state's High-power committee in its report tried to blame this company without recording any reason why the district collector concerned did not take positive action upon such request of the company nor seek instructions from his immediate superiors concerned considering the apprehensions expressed. "This report finds fault with the company since it did not take up the matter with the higher authorities like the commissioner of industries, principal Secretary, industries department, government of Andhra Pradesh", reads the order.

"According to this report, the company having deemed it absolutely necessary to continue its operations during the lockdown period, keeping the safety factor of the factory into account in view of bulk storage of styrene, it was for the company to approach the superiors", observed Justice Venkataramana.

However, the bench proceeded to state that it should be noted that the district collector, Visakhapatnam and the Commissioner of police, Visakhapatnam are the members of the high-power committee, commenting that "a typical bureaucratic search to blame the affected is seen in this approach".

"The question of knowledge, either with reference to the last clause of section 299 IPC and clause fourthly in section 300 IPC, is largely based on probable consequences of an alleged criminal act attributed against the accused and does not connote any intention at all", reflected the bench.

The Single Judge continued to state that the person responsible for reckless or rash or negligent act causing death of which he had knowledge or that such act would be dangerous enough to lead to some untoward thing, which is likely to cause death, as a consequence, are all questions of facts relating to fastening of liability under section 304–II IPC (Act by which death caused 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). Therefore the questions relating to application of either section 304-A IPC (Death by negligence) or section 304-II IPC related to different and distinct spheres and section 304-A IPC excludes culpable homicide. Except section 304-II IPC, other offences complained of against all these accused are bailable. "Whether these offences and section 304-II IPC could go together or not is not open for consideration at this stage in these petitions, being questions based on disputed facts to be dealt with in the realm of trial", expressed the Judge.

The bench appreciated that till the date of arrest of these accused from the date of the incident for nearly 2 months, it is not the complaint of the respondents that they, in any manner interfered with the process of investigation or attempted to meddle. On the other hand the reports of the high-power committee and that of the director of factories suggest that all these accused were very much available and they all cooperated with the authorities concerned. "In this background, it is unlikely that these accused would interfere with the process of investigation anymore or stall its progress. It is also unlikely that they would prevent any of the witnesses from responding to the call of investigating officers. The situation and apprehension of the accused on the effect of Covid pandemic are also matters of reckoning in this context", opined the bench.

The Court also noted that a Substantial part of the investigation apparently is completed. 604 witnesses have been examined so far. When it is compared with the number of witnesses further to be examined, that is, 120, the bench found that the progress made in the course of investigation is a measure of appreciation. "The accused held different positions in this company as described in the remand report. Therefore, it is unlikely that they would flee away from the process of justice or make themselves scarce", said the bench.

The bench conceded that while "the incident did have enormous impact and is of great magnitude, and is grave", yet there are circumstances in favour of the accused to mitigate, which tend to dilute the gravity of the instance in relation to their role, if, as a whole, responsible.

"Certain externally forced events like long shut down of the plant with you to lock down and the effort of the company to air its apprehension of lurking danger due to bulk storage of styrene monomer in its tanks to the authorities concerned in vain stand to consider in this respect", expounded the bench.

Asserting that prima facie consideration of the materials at this stage impels the drawing of these inferences, the Court ruled that the above factors positively stand in favour of the accused, and accepted their pleas for bail, subject to conditions.

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