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1980 DIGILAW 54 (CAL)

Golakpati Mahato v. State of West Bengal

1980-02-23

SIBA PRASAD RAJKHOWA

body1980
ORDER By this Revision Petition, the accused/petitioner has prayed for quashing the proceeding in case no. GR 617 of 1980 under s. 3 of the Coal Mines (Nationalisation) Act, 1973 and under s. 30(2) of the Coal Mines (Nationalisation) Amendment Act. 1976. 2. Sri Sunil Kumar Chatterjee, an alert Sub-Inspector of Police who was the Officer-in-Charge of Jamuria Police Station, District Burdwan during April 1980 filed a first information report dated 17.4.80 to the effect that the accused/petitioner was appointed Receiver of Acharya Desher Mohan Colliery, Police Station Jamuria, by order of the Hon'ble High Court at Calcutta in connection with Special Suit no. 89 of 1978. Accordingly the said Receiver was extracting coal from the said colliery and used to sell it to different persons. On 11.4.80, a three-Judge Bench of the Supreme Court of India passed an order on the issue of Coal Mines and while upholding the validity of the Coal Mines (Nationalisation) Amendment Act 1976, declared infer alia that according to the scheme of the Act, the coal industry had been nationalised as a whole and a total ban had been imposed upon operation of coal mines by any person other than the Central Government, State Government, Company or Corporation owned and controlled by General Government and a Company engaged in the production of iron and steel in any form in the country and no Receiver appointed by any Court in the country could operate any coal mines in any form. But violating the order of the Hon'ble Supreme Court, Sri G. P. Mahata (Receiver) extracted coal from the aforesaid colliery and stored the same in the premises of the said colliery and he continued the illegal practices even after 11.4.80. 3. Accordingly, the informant Sri Chatterjee, visited .the aforesaid colliery on 16.4.80 and found heaps of coal lying in the premises of the said colliery. He found none from the Receiver's side present in the colliery. So he contacted Sri Sunil Kumar Das, acting Manager of the neighbouring Tara Colliery and Sri Janardan Mukherjee, Surveyor of that colliery and requested them to take proper account of the coal. The Surveyor took measurements of the extracted coals heaped at the premises and estimated roughly at 1735 (one hundred seventy three point five) metric tonnes of slack and steam coal. The Sub-Inspector then seized the above coal in presence of the witnesses. The Surveyor took measurements of the extracted coals heaped at the premises and estimated roughly at 1735 (one hundred seventy three point five) metric tonnes of slack and steam coal. The Sub-Inspector then seized the above coal in presence of the witnesses. According to him Sri Golok Pati Mahata (the Receiver) committed offences by extracting coal without authority from the aforesaid colliery and Sri Mahata was liable under s. 3 of the Coal Mines (Nationalisation) Act 1973 and under s. 30(2) of the Coal Mines (Nationalisation) Amendment Act, 1976 and he started the case suo motu and directed Sri K. P. Satpati, Sub-Inspector of Police to investigate the case and the said Police Officer, after investigation, submitted charge sheet on 20.4.81. 4. The case was registered in the Court of learned Sub-Divisional judicial Magistrate, Asansol and was numbered as G. R. 617/80. On 18.8.83, the accused Golok Pati surrendered before learned court and was enlarged on bail. 5. On 25.5.84, a charge was framed against accused under s. 30(2) of the Coal Mines (Nalionalisation) Act, 1973 and the next date was fixed fur evidence. In the mean time, the accused has come up before this Court in revision praying for quashing the proceeding. 6. It may be mentioned here that the Coal Mines (Nationalisation) Act, 1973 received the assent of the President on 30.5.73 and the Coal Mines (Nationalsation) Amendment Act, 1976 received the assent of the President on 27.576. Certain Writ Petitions were moved before the Supreme Court challenging the validity of the Amendment Act (67 of 1976). A Seven-Judge Bench of the Supreme Court presided over by Hon'ble Chief Justice Mr. Chandrachud dismissed the petitions and upheld the validity of the Amendment Act. That was reported in AIR 1980 SC 1682 (Tara Prasad Singh etc. v Union of India & ors.) Thereafter some other petitioners moved Writ petitions before the Supreme Court challenging the vires of ss. 3(3), 4 and 5 of the Amendment Act as being violative of Art. 14 on the ground that it discriminated against workmen in mines operated by agencies other than those contemplated by s. 3(3). A Three-Judge Bench of the Supreme Court presided over by Hon'ble Mr. Justice Krishna Iyer, by its judgment dated 11.4.80 ruled that the Amendment Act could not be said to be violative of Art. 14 of the Constitution of India. A Three-Judge Bench of the Supreme Court presided over by Hon'ble Mr. Justice Krishna Iyer, by its judgment dated 11.4.80 ruled that the Amendment Act could not be said to be violative of Art. 14 of the Constitution of India. This judgment has been reported in AIR 1980 SC 2031 (Dejapada Das etc. v. Union of India). While delivering this judgment, Supreme Court passed an obiter which is as follows : "It has been mentioned on more than one occasion in this Court that interlocutory orders have been passed, that receivers have been appointed by civil courts, including High Courts, and that working of mines is illicitly going on. In the face of the all-pervasive statutory prohibition which is peremptory in language and punishable in consequence, it is surprising that any Receiver could at all dare to work mines. While we disapprove of that conduct we make it perfectly plain that there will be no more sanction for any receiver or other officer of court to extract coal or coking coal from any mine in India. Section 3(3) of the 1976 Act being mandatory and having been held constitutional by this Court, it is no longer permissible for any court• India to appoint a Receiver or otherwise permit extraction of coal or coking coal. We vacate all interim orders forthwith". 7. From the records placed before me, it is seen that a Single Bench of this Court presided over by Hon'ble Mr. Justice Sabyasachi Mukherjee (as his Lordship then was. by the order dated 25.9.78 passed in Special Suit No. 89 of 1978 Golok Pati Mahata v Dr. Nilratan Acharyya & ors.) appointed Sri Golok Pati Mahata, Receiver in respect of Acharjya Deser Mohan Colliery. 8. The prosecution's contention is that in view of The judgment and order dated 11.4.80 passed by the Supreme Court in the case of Dejapada Das (supra) the accused/petitioner could not extract and dispose of and coal with effect from 11.4.80 and, therefore, he was liable to be prosecuted as he operated the coal mine after that date. 9. But the learned Counsel for the petitioner has contended that the accused/petitioner (Receiver) is protected in view of the provisions contained ss. 78 and 79 of the Indian Penal Code and that no prosecution lies against him in view of the bar under s. 197 of the Code of Criminal Procedure. 9. But the learned Counsel for the petitioner has contended that the accused/petitioner (Receiver) is protected in view of the provisions contained ss. 78 and 79 of the Indian Penal Code and that no prosecution lies against him in view of the bar under s. 197 of the Code of Criminal Procedure. In support of his contentions, he has relied upon two decisions of this Court reported in (1) 59 CWN 481 (Banwarilal Aganvala v. Sudhmnoy Basu) and (2) 1982 (1) CHN 470 (Rambadan Choubey v. State). 10. Section 78 of the Indian Penal Code reads as follows : "Nothing which is done in pursuance of or which is warranted by the judgment or order of a Court of Justice, if done whilst such judgment or order remains in force, is an offence, notwithstanding the Cant may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction". 11. Section 79 of the Indian Penal Code reads as follows :- "Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it." 12. Section 197(1) of the Code of Criminal Procedure read as follows: "(I) When any person who is or was a Judge or Magistrate, or a public servant not removable from his office have by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government. (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs or a State, of the State Government". 13. (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs or a State, of the State Government". 13. In 59 CWN 481, it was held that the Rule requiring leave of the Court to sue a Receiver is an ancient rule based, not on any statutory authority but on reasons of public policy. For all practical purposes, the Rule ha, become a part of the law of the land. Its application is not limited to suits, stricily so called, but also extends to other legal proceedings. 14. In 1982 (1) CHN 470 , it was held that the receiver carried ant the order of the Court which appointed him as such and, Therefore, it is necessary first to draw the attention of the Court concerned which appointed him Receiver that his appointment is of no legal effect after the decisions of the Supreme Court and get discharge of the Receiver and not straightaway to prosecute him without obtaining consent of the Court concerned. 15. I am in respectful agreement with the decisions reported in the cases relied on by the learned Counsel for the petitioner I hold That a Receiver appointed by a Court is entitled to protection under ss.71 and 79 of the Indian Penal Code and that prosecution should apply to the Court appointing such Receiver for sanctions to prosecute him. 16. In view of the discussions made above, this revision petition is allowed and the criminal proceeding pending against the accused/petitioner is hereby quashed and the Rule is made absolute. The Slate shall however, be at liberty to apply for sanction before the Court concerned if it still desires to prosecute the petitioner. Rule made absolute; proceeding quashed; liberty given.