Onkarmal Agarwalla v. State Of Bihar — 1976 DIGILAW 144 (PAT)

Judgment C.N.TIWARY, J. 1. This is an application for quashing the order, dated 28th of July, 1971 by which the learned Munsif Magistrate took cognizance of an offence punishable under S.69 of the Mines Act (hereinafter referred to as the Act). It appears that on receipt of a written complaint from Deputy Director of Mines Safety Dhanbad No. II Region, Dhanbad the learned Magistrate took cognizance of an offence punishable under S.69 of the Act against the petitioner Onkarmal Agarwalla owner (Receiver) of Khudia colliery, P.O. Nirshachati, Dist. Dhanbad and this case was registered as C.M.A. Criminal Case No.45 of 1971 T.R. No.1359 of 1971. The allegation made against the petitioner is that in contravention of the provisions of S. 17 of the Act and Regulation 31 (1) (a) of the Coal Mines Regulations, 1957 , he failed to appoint a Manager for the Kudia Colliery for the period from 5-5-1971 to 30-5-1971 and that during the said period the mine had been worked without a duly qualified Manager. 2. Sec.17 of the Act reads thus:- "Managers-Save as may be otherwise prescribed every mine shall be under one manager who shall have the prescribed qualifications and shall be responsible for the control, management, supervision and direction of the mine, and the owner or agent of every mine shall appoint himself or some other person, having sucn qualifications, to be such manager." 3 Regulation 31 (1) (a) says:- "No mine shall be opened, worked or reopened unless there is a manager of the mine, being a person duly appointed and having such qualifications as are required by these regulations." 4 Sec. 69 of the Act lays down: "Failure to appoint manager:- Whoever in contravention of the provisions of S.17, fails to appoint a manager shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to two thousand and five hundred rupees, or with both." 5 The petitioner does not deny the allegation that the colliery had been worked without a duly qualified manager for the period from 5th May, 1971 to 30th May, 1971. It is said that a qualified Manager Sri A.B. Roy appointed for the colliery left the colliery on 5-5-1971 and a new qualified Manager was appointed on 31-5-1971 and thus, the mine had been worked from 5th May, 1971 to 30th May, 1971 without a qualified Manager. It is said that a qualified Manager Sri A.B. Roy appointed for the colliery left the colliery on 5-5-1971 and a new qualified Manager was appointed on 31-5-1971 and thus, the mine had been worked from 5th May, 1971 to 30th May, 1971 without a qualified Manager. It is further said that the colliery was in dispute as to who was its owner, the petitioner Onkarmal Agarwalla or one Gulzarimal Agarwalla. First Appeal No.175 of 1969* arising out of the dispute was pending in the High Court and during the pendency of the First Appeal the petitioner Onkarmal Agarwalla was appointed receiver of the Colliery by the High Court. The case of the petitioner is that the complainant has not stated that he obtained leave of the High Court which appointed the petitioner Receiver before filing the complaint against the petitioner and therefore, the criminal case instituted against the petitioner is not maintainable and the order taking cognizance against the petitioner is fit to be quashed. * Reported in AlR 1971 pot 83 (F.B.). 6. The only point for consideration is whether the order taking cognizance against the petitioner is bad in law because leave of the court which appointed the petitioner as Receiver was not obtained before the filing of the complaint against the petitioner. 7. Sec.17 of the Act says that the owner or agent of every mine shall appoint himself or some other person having prescribed qualification to be Manager of the mine. Qualification for appointment of a Manager has been prescribed in Regulation 31 (1) (a) of the Coal Mines Regulations, 1957 . 7. Sec.17 of the Act says that the owner or agent of every mine shall appoint himself or some other person having prescribed qualification to be Manager of the mine. Qualification for appointment of a Manager has been prescribed in Regulation 31 (1) (a) of the Coal Mines Regulations, 1957 . Owner has been defined in S.2 (1) of the Act as follows:- "(1) "Owner", when used in relation to a mine, means any person who is the immediate proprietor or lessee or occupier of the mine or of any part thereof and in the case of a mine the business whereof is being carried on by a liquidator or receiver, such liquidator or receiver and in the case of a mine owned by a company, the business whereof is being carried on by a managing agent, such managing agent, but does not include a person who merely receives a royalty, rent or fine from the mine, or is merely the proprietor of the mine, subject to any lease, grant or licence for the working thereof, or is merely the owner of the soil and not interested in the minerals of the mine; but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability;" 8. The petitioner is admittedly a receiver appointed by the court in respect of the said colliery. During the period from 5th of May to 30th of May 1971 also he worked as receiver. Therefore, in relation to the colliery he was owner during the relevant period in view of the provisions contained in S.2 (1) of the Act. 9. As stated above the petitioner had filed a suit in respect of the colliery, in which the dispute was as to whether the petitioner or one Gulzarimal Agarwalla was the owner of the colliery. Initially Gulzarimal Agarwalla had been appointed a receiver. Gulzarimal Agarwalla having lost in the trial court, filed First Appeal No.171/ 69 in the High Court and in the said First Appeal Gulzarimal Agarwalla was discharged and the petitioner was appointed receiver by an order dated 14-11-1959. It is for this reason that the petitioner has been described as owner receiver in the complaint petition. 10. Gulzarimal Agarwalla having lost in the trial court, filed First Appeal No.171/ 69 in the High Court and in the said First Appeal Gulzarimal Agarwalla was discharged and the petitioner was appointed receiver by an order dated 14-11-1959. It is for this reason that the petitioner has been described as owner receiver in the complaint petition. 10. It is not denied that it was for the petitioner whether as owner or as receiver to appoint a duly qualified Manager. He did not appoint a duly qualified manager for the Colliery. Prima facie he is guilty of the offence of contravention of S.17 of the Act read with Regulation 31 (1) (a) of the Coal Mines Regulations, 1957 . There is no provision either in the Mines Act or in the Coal Mines Regulations, 1957 or in the Code of Criminal Procedure to the effect that cognizance of offence will not be taken against a receiver unless the leave of the appointing Court has been obtained. There is no statutory provision, which requires a party to take leave of the court to use or to prosecute a receiver. It is, however, contended by the learned Counsel for the petitioner that the rule requiring the leave of the court to sue the receiver is based on reasons of public policy and for all practical purposes the rule has become the law of the land. 11. The learned counsel for the petitioner has relied on a few decisions in support of his contention. In Banwari Lal Agarwalla V/s. Sudhamoy Basu ((1955) 59 Cal WN 481) Banwari Lal Agarwalla was a tenant of a holding in respect of which Sudhamoy Basu had been appointed receiver by the court. Banwari Lal Agarwalla filed a petition before the Rent Controller alleging that the contractual rent, which was Rs.65/-per month was exorbitant. Rent Controller held that the standard rent should be Rs.23/14. He did not consider the objection of the receiver that the case was not maintainbale in law as no leave of the court appointing him as receiver had been obtained. Rent Controller held that the standard rent should be Rs.23/14. He did not consider the objection of the receiver that the case was not maintainbale in law as no leave of the court appointing him as receiver had been obtained. High Court at Calcutta held:- "It is only proper, therefore, and, indeed it is imperative for the maintenance of the dignity of the Courts and respect for the judiciary, so essential for a stable administration that the property or any rights therein should not be allowed to be affected or interfered with without the leave of the said appointing court and the persons desiring to take any step which might affect the said property or any rights therein, should be obliged to obtain that Courts leave in that behalf". 12. In Corporation of Calcutta V/s. Sudhamoy Bose (AIR 1960 Cal 444: 1960 Cri LJ 902) a receiver appointed by the court had been prosecuted for an alleged offence under the Calcutta Municipal Act without the previous permission of the Court appointing him as receiver. Their Lordships of the Calcutta High Court observed: "Prima facie the alleged offence was in connection with the duties of a Receiver as such. The Receiver was suddenly called upon to pay half yearly a sum of Rs.60/-for a license. This amount had not been claimed or realised before by the Corporation of Calcutta. Non-compliance on the part of the Receiver prima facie was for the benefit or protection of the estate, and it cannot be said that the Receiver was acting in excess of his duties as Receiver far less in violation of these. Permission or lease of the Court, therefore, in any case was necessary." 13. In Santok Chand V/s. Sugan Chand Manawat (AIR 1919 Cal 647: 19 Cri LJ 820) the plaintiff had been appointed receiver in respect of certain bales of jute. On the application of the defendant the court directed the receiver to make over the bales to the defendant on his furnishing security. The defendants after taking delivery of a few bales lodged a complaint against the receiver for criminal breach of trust in respect of those bales on the allegation that the receiver had substituted jute of an inferior quality in the bales affixing thereon the labels of the defendants without first obtaining leave of the court which appointed the plaintiff receiver. The defendants after taking delivery of a few bales lodged a complaint against the receiver for criminal breach of trust in respect of those bales on the allegation that the receiver had substituted jute of an inferior quality in the bales affixing thereon the labels of the defendants without first obtaining leave of the court which appointed the plaintiff receiver. Their Lordships observed:- "It must be borne in mind, (and this is a point which the learned Magistrate seems to have overlooked) that the jute in question was entrusted to Santok Chand not by the defendants but by the Court in whose possession and custody it undoubtedly came. The defendants had only an indirect interest in the property contingent upon the fulfilment of certain conditions. It was not open therefore to Sugan Chand to commence proceedings against Santok Chand for criminal breach of trust without first obtaining the leave of the Court which held the property." "If the matter had been investigated by this court it could have determined after hearing both parties whether any irregularity had been or was being committed by its officer the receiver and if that were the case whether an award of pecuniary compensation would suffice or whether the receiver should be prosecuted criminally all this was prevented by the defendant Sugan Chand rushing to the police Court. His object is self-evident. In that court the accused could not give evidence on their own behalf and a conviction if obtained might be a useful lever to be employed in the suit then pending against him to bring the plaintiff to terms." 14. In Jnanendra Nath V/s. Nilmony Dey (AIR 1939 Cal 701: 41 Cri LJ 52) their Lordships had occasion to consider the decision in Santok Chand ((1918) 19 Cri LJ 820 (Cal)) (Supra). Their Lordships observed: - "For the purpose of disposing of this rule, it is unnecessary to enter into any detailed discussion of the question whether, in the absence of leave from the High Court by whom the receiver had been appointed, the criminal Courts had or had not jurisdiction to entertain the complaint. Their Lordships observed: - "For the purpose of disposing of this rule, it is unnecessary to enter into any detailed discussion of the question whether, in the absence of leave from the High Court by whom the receiver had been appointed, the criminal Courts had or had not jurisdiction to entertain the complaint. There is a great deal of force in the argument that S. 190 (1) (a), Criminal P.C., which states that "except as hereinafter provided, any presidency Magistrate, District Magistrate, or Sub-divisional Magistrate and any other Magistrate empowered in this behalf, may take cognizance of any offence upon receiving a complaint of facts which constitute such offence." is conclusive on the question of jurisdiction and that save as provided to the Code itself (or in any other law such as is referred to in S.1 (2) of the Code), there is no warrant for denying or limiting the power to take cognizance of offences upon complaint. For the purposes of this rule, we shall assume that the Additional Chief Presidency Magistrate, who took cognizance of the offence alleged in the present case had jurisdiction to do so, even in the absence of leave from the High Court such leave not being required by any provision of the Code (or any other law); and we shall also make the consequential assumption that the Third Presidency Magistrate, to whom, the case was subsequently transferred had jurisdiction to go on with it, if he had chosen to do so. We may observe at this stage that we have seen no reported decision which actually conflicts with these assumptions. Even in ILR 46 Cal 432: (19 Cri LJ 820), which comes nearest to a conflict, the learned Judges did not go quite so far as to deny jurisdiction to the criminal Courts. It is true that in one place of their judgment they did say that it was "not open" to the complainant to commence proceedings against the accused without previous leave; but this was more fully explained in later passage, where they said; We think that the Criminal Proceeding against Santok Chand were improperly instituted against him because the complainant was not the person then directly interested in the property and because the leave of this Court was not first obtained. Thus the decision was rested on the impropriety of the complaint rather than any lack of jurisdiction in the Court. Thus the decision was rested on the impropriety of the complaint rather than any lack of jurisdiction in the Court. But even assuming that the Magistrate had jurisdiction to proceed with the present complaint the question still remains whether it would have been proper for him to do so. We have no doubt that it would not. In the first place, there was no specific leave from the High Court for the institution of a criminal Case, although leave had been specifically asked for. As we have already said, this may not be a bar to jurisdiction but it is certainly relevant on the question of the propriety or desirability of criminal proceedings". 15. In Braj Bhushan Trigunait V/s. Sris Chandra Tewari, AIR 1918 Pat 100 there was an application for revision of an order made by Subordinate Judge refusing leave to the petitioner to sue a receiver. The application was allowed. Their Lordships observed: The general principle applying to cases of this kind in which application is made to sue a Receiver in respect of properties in charge of the Court, is that unless the Court is satisfied that there is no question at all to try or there is no legal foundation to the claim, leave should not, as a matter of course, be refused. The onus is therefore, strongly, on the court to show that no foundation for any claim has been made out." 16. From the cases relied upon by the learned Counsel for the petitioner it would appear that there is no statutory provision which requires a party to obtain leave of the appointing Court to prosecute the receiver. But there is a rule requiring leave of the Court to sue or to prosecute the receiver, based on reason of public policy and such a rule is to be followed in cases, in which the property in charge of the Court for which the receiver has been appointed or any right therein is likely to be affected or interfered with by the institution of the suit or the criminal proceeding against the receiver. This rule based on public policy is meant to prevent abuse of the process of the Court. 17. This rule based on public policy is meant to prevent abuse of the process of the Court. 17. The question that arises for consideration is whether the prosecution of the petitioner in the complaint case aforesaid is in any way likely to affect or interfere with the property in charge of the Court for which the petitioner has been appointed receiver. It is obvious that the property in charge of the court is not at all likely to be affected or interfered with by the prosecution of the petitioner for offences punishable under section 69 of the Act. For the safety of the property in-charge of the Court namely, the Khudia Colliery, it is absolutely necessary that mining operation should be conducted in accordance with the provisions of the Act, Regulations, Rules, byelaws etc. under a duly qualified manager. If the mining operation is conducted without a duly qualified Manager, safety of the colliery will be at stake. How can the prosecution of the receiver for conducting mining operation without having a duly qualified Manager be said to be affecting or interfering with the property in charge of the Court? In the instant case it is in the interest of the property in charge of the Court that the petitioner should be prosecuted for the offence punishable under S. 69 of the Act. Such a prosecution will be a lesson to him so that in future he may not be conducting mining operation without having a duly qualified Manager. Hence, leave of the appointing Court to prosecute him (petitioner)for the offence punishable under S.69 of the Act was not required in the instant case inasmuch as the prosecution of the petitioner is not likely to affect or to interfere with the colliery or any right therein, 18. Not only for the safety of the colliery but also for the safety of the lives of so many persons working in colliery, it is necessary that the mining operation should be done under a qualified Mines Manager. Public policy would require that the receiver conducting mining operation without a qualified mines Manager should be prosecuted in accordance with law. Hence, the rule requiring leave of the court to prosecute the receiver appointed by it, which is based on public policy, is not applicable to the facts of this case. 19. Public policy would require that the receiver conducting mining operation without a qualified mines Manager should be prosecuted in accordance with law. Hence, the rule requiring leave of the court to prosecute the receiver appointed by it, which is based on public policy, is not applicable to the facts of this case. 19. It has already been pointed out that the "owner" when used in relation to mines means receiver also. It appears that while enacting this Act Legislature applied its mind to the question regarding the limitation of prosecution of the owner etc. of the mines, Ss. 75 and 76 of the Act lay down:- "75. Prosecution of owner, agent or manager- No prosecution shall be instituted against any owner, agent or manager for any offence under this Act except at the instance of the Chief Inspector or of the District Magistrate or of an Inspector authorised in this behalf by general or special order in writing by the Chief Inspector: Provided that in respect of an offence committed in the course of the technical direction and management of a mine, the District Magistrate shall not institute any prosecution against an owner, agent or manager without the previous approval of the Chief Inspector." "79. Limitation of prosecutions.- No court shall take cognizance of any offence under this Act, unless complaint thereof has been made- (i) within six months of the date on which the offence is alleged to have been committed, or (ii) within six months of the date on which the alleged commission of the offence came to the knowledge of the Inspector, or (iii) in any case where a court of inquiry has been appointed by the Central Government under S.24 within six months after the date of publication of the report referred to in sub-s. (4) of that section whichever is later." 20. If the Legislature having defined the "owner" when used in relation to mines to mean receiver, had intended that leave of the appointing court to prosecute the receicer should be taken, such a provision must have been made in S.75 or S.79 of the Act, which deals with the limitation of the prosecution of the owner receiver etc. 21. If the Legislature having defined the "owner" when used in relation to mines to mean receiver, had intended that leave of the appointing court to prosecute the receicer should be taken, such a provision must have been made in S.75 or S.79 of the Act, which deals with the limitation of the prosecution of the owner receiver etc. 21. It must therefore, be held that in the circumstances of this case the order taking cognizance of the offence punishable under S.69 of the Act against the petitioner without obtaining leave of the appointing court is not illegal, or without jurisdiction. 22. Complaint was filed on 28-7-1971. The two witnesses named in the complaint petition were examined and cross-examined before 7-10-1972. Order dated 7-10-1972 shows that prosecution closed its case and 17-11-1972 was fixed for the examination of the accused under S.342 of the Code of Criminal Procedure. The accused did not appear on that date. Thereafter on 4-4-73 this application for quashing the proceeding in criminal case pending in the court below was filed. From the decision in Amarchand V/s. Shanti Bose ( AIR 1973 SC 799 : 1973 Cri LJ 577) it will appear that in a case like the present one where the trial is almost going to a close it would not be appropriate to quash the proceeding. Proper course at this stage to be adopted is to allow the proceeding to go on and to come to its logical conclusion one way or the other. Therefore, the High Court would decline to interfere with the proceeding in the court below at this State. 23. In view of the aforesaid discussions this Application is dismissed. UDAY SINHA, J. 24 I agree.