S. K. Banerjee v. State Of Bihar — 1995 DIGILAW 425 (PAT)

Judgment S. K. Chattopadhyaya, J. 1. S. K. Chattopadhyaya, J.-In the present writ application, the petitioners have prayed for the following reliefs: (a) For issuance of an appropriate writ for quashing the entire criminal case in connection with CMA Case No.3/78 ; (b) For direction upon the concerned respondent as well as the court to refer the above case before the Mining Board or committee in terms of section 81 of the Mines act, 1952 or accept the fine for violation of the provisions under Sec.72-C (l) (a) of the Mines Act. 2. Before appreciation the points raised in this application the factual background of the case may be portrayed. A complaint was filed by the Inspector of Mines against the petitioners for offences punishable under Section 72-C (1) (a) of the Mines Act (hereinafter referred to as the mines Act) on the allegation that the petitioners were responsible for the disasterous accident which occurred in chasnala Colliery in the District of dhanbad on 27-12-1975 at 1.30 P. M. , as a result of which nearly 375 persons lost their lives. By a Notification dated 31-12-1975, a court of enquiry was set up by the Central Government to go into the causes and circumstances of the said occurrence. On the basis of the report, published on 18-3-1978, the instant complaint was filed. The allegation was that the accused persons contravened some of the regulations, as a result of which the disaster occurred and if they would have taken care, the said accident could have been averted. On such complaint being filed, cognisance was taken on 3-6-1978. 3. Daring pendency of the trial, one of the accused died and the petitioners made several verbal requests before the court below to refer the matter to the Mines Board or Committee as provided under Sec.81 of the Mines Act, which has not been considered by the court. 4. Mr. On such complaint being filed, cognisance was taken on 3-6-1978. 3. Daring pendency of the trial, one of the accused died and the petitioners made several verbal requests before the court below to refer the matter to the Mines Board or Committee as provided under Sec.81 of the Mines Act, which has not been considered by the court. 4. Mr. Mazumdar, learned counsel appearing on behalf of the petitioners, has raised the following points in support of the prayers made in this application : (i) In view of Sec.80 of the Mines act the court below ought to have given a benefit to the petitioners; (ii) In view of the provisions as contemplated under Sec.81 of the Mines, act, the matter should have been referred to the Central Government; (iii) Where in view of the admitted facts, the petitioners can he s;iid to huvc violated the provisions of Sec.72-C (I) (a)of the Mines Act; (iv) At the relevant time, the provisions of Regulation 127 (4) of the Coar-Mines regulation was not mandatory but obligatory and in the view of the matter, violation of that regulation cannot arise and the prosecution for violation of the provisions under the mines Act is wholly without jurisdiction; (v) due to protracted trial for Ihe last 15 years, when the petitioners have already suffered the ordeal of this proceeding the entire proceedings should be quashed, and (vi) Dismissal of the petitioners from services is as good as a punishment for them and as such, continuation of the criminal proceeding will amount to double jeopardy. 5. Mr. A. K. Trivedi, learned standing Counsel for the Union of India, appearing on behalf of the respondent no.2, has contended thai in the facts and circumstances of the case, neither the provisions of Sec.80-A of the mines Act nor Sec.81 are applicable. According to him, Sec.80-A has already been deleted from the statute book in the year 1984 and as such, today the petitioners cannot be any benefit out of that. Further it is contended that as because punishment contemplated under Sec.71-C (1) (a) of the Mines Act is both imprisonment for a term and or fine, this provision under Sec.80-A is not applicable. Further it is contended that as because punishment contemplated under Sec.71-C (1) (a) of the Mines Act is both imprisonment for a term and or fine, this provision under Sec.80-A is not applicable. According to him, under Sec.81, it is the discretion of the trial court after being satisfied from the facts and circumstances of the case, to refer the matter to the Board or the committee and this discretion is not mandatory but obligatory. Lastly he submits that taking into the seriousness of the facts, in which about 375 persons have lost their lives due to laches/negligence on the part of the accused persons, the High Court should be reluctant in, interfering with the proceeding. 6. Mr. P. D. Agrawal, learned G. P. II, appearing on behalf of the State of bihar, respondent! No.1, has submitted that the proceeding cannot be quashed by this Court simply on the ground that the petitioners moved this Court at the stage when the (rial was in its final stage. Secondly, he submits lhat Section 80-A of the Mines Act is not a beneficial legislation rather it confers jurisdiction to a Presidency Magistrate or a magistrate of the first class to pass a sentence of fine exceeding two thousand rupees authorised by this Act on a convict. Countering the submissions of Mr. Mazumdar about referring the matter to the Board, Mr. Agrawal submits that it is the discretion of the trial court to refer the mailer to the Mining Board or Committee, if in its opinion the case is one of such nature. This discretion, he continues, cannol be exercised by the High Courl in exercising its power under Article 226 of the Constitution because that would be against the intention of the legislature. 7. On the aforesaid premises, it is necessary to have a look to the provisions of the Act. 8. Chapter IX of the Mines Acl.1952 deals with penalties and. procedure. Sec.63 postulates different types of sentences in respect of a different types of offences. Sec.71 mandates the owner, etc. , to report to chief Inspector in certain cases and section 72 prohibits persons employed in a Mines to do something. Sec.72-A speaks about special provisions for contravention of certain regulations. Sec.72-C relates to special provision for contravention of law with dangerous results. Sec.71 mandates the owner, etc. , to report to chief Inspector in certain cases and section 72 prohibits persons employed in a Mines to do something. Sec.72-A speaks about special provisions for contravention of certain regulations. Sec.72-C relates to special provision for contravention of law with dangerous results. In the instant case, we are concerned with section 72-C (1) (a), of the mines Act, which reads thus : "if such contravention results in loss of life, with imprisonment which nay extend to two years, or with fine which may extend to five thousand rupees, or with both. From the aforesaid provisions, it is apparent that in case of violation of any provision of the Act or any regulation, rule or by-law or any order made thereunder resulting in loss of life, persons shall be punished with imprisonment which may extend to two years or with fine or with both. So when a person is found guilty, the court may either sentence him by imprisonment or can only impose fine or with both imprisonment as well as fine. 9. Section 80-A, which was inserted by the Mines (Amendment) Act, 1959 (LXII of 1959), Sec.44 (w. e. f.16-1-1960) reads as follows : "special provisions regarding fine.-Notwithstanding anything contained in section 32 of the Code of Criminal Procedure, 1898, it shall be lawfully for a Presidency magistrate or a Magistrate of the first class to pass a sentence of fine exceeding two thousand rupees authorised by this Act on any person convicted of an offence thereunder. " the object of enacting Mines Act, 1952 was to amending and consolidating a law relating to the regulation of labour and safety in mines. Some of the important amendments were sought to be made by Amending Act, LXII of 1959, one of which is enhancement of penalties for contravention of the different provisions of the Act to make punishment more deterrent by raising the scale of fines and also providing for imprisonment alongwith fine in the case of subsequent convictions for the same offence and for contravention of orders under Sec.22. 10. 10. Section 32 of the Code of criminal Procedure, 1898 (hereinafter referred to as the old Code) reads as follows : " (1) Sentences which Magistrates may pass the Courts of Magistrates may pass the following sentences, namely : (a) Courts of Presidency Magistrates and of Magistrates of the first class: imprisonment for a term not exceeding two years, including such solitary confinement as is authorised by law : Fine not exceeding (two thousand rupees) (b) Courts of Magistrate of the second class : imprisonment for a term not exceeding six months, including such solitary confinement as is authorised by law ; Fine not exceeding (five hundred rupees) (c) Courts of Magistrates of third class imprisonment for a term not exceeding one month: Fine not exceeding (one hundred rupees ). (2) The Court of any Magistrate may pass any lawful sentence, combining any of the sentences which it is authorised by law to pass". The aforesaid provisions clearly indicates that Presidency Magistrate and the Magistrate of first class could not have imposed fine exceeding two thousand rupees whereat magistrates of first class were empowered only to impose fine up to five hundred rupees. is, of course, apart from their respective powers of imposing punishment of sentence. This power of imposing fine by the magistrates was, however, enhanced by Sec.80-A of the Mines act by giving them power to pass a sentence of fine exceeding two thousand rupees. 11. Then comes the Criminal Procedure code, 1973, w. e. f.1st April, 1974. Sec.29 of this Code, which corresponds to Sec.32 of the old code, reads thus : "sentences which Magistrates may pass.- (I) The Court of a Chief Judicial magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or imprisonment for a term exceeding seven years. (2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or fine not exceeding five thousand rupees, or of both. (3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both. (3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both. (4) The Court of a Chief metropolitan magistrate shall have the powers of the court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the court of a Magistrate of the first class". On a bare comparison between the old provision and the new provision of the Code of Criminal Procedure, it is clear that under Sec.29 of the new code the limit of the Magistrates in imposing sentences of imprisonment and also fine have been increased. Probably in such view of the matter, the legislature was of the view that as the intention of enacting section 80-A of the mines Act has been fulfilled in coming into operation Sec.29 of the new code, the provisions of Sec.80-A has been deleted from the statute book with effect from 31st May, 1984. In other sense, when it was found that under Sec.29 of the new Code, the respective magistrate can impose fine which is inconsqnance with the intention of the legislature in enacting Section 80-A of the Mines Act, it was thought proper to delete this provision from the the Mines Act for ever. 12. In the back drop of the aforesaid provisions of law, in my considered opinion, the argument of Mr. Mazumdar that the petitioner are entitled to get benefit of Sec.80-A is devoid of any merit. 13. Now the question as to whether the trial court should refer the matter to the Committee, is to be decided in the light of the provisions as contemplated under Sec.81 of the mines Act. 14. Section 81 of the Mines Act reads as follows : "reference to Committee in lieu of prosecution in certain cases.- (1) If the court trying any case instituted at the instance of the Chief Inspector or the District magistrate or of an Inspector under this. A. I is of opinion that the case is one which should, in lieu of a prosecution, be referred to a Committee it may stay the criminal prosecution, and report the matter to the central Government with a view to such reference being made. A. I is of opinion that the case is one which should, in lieu of a prosecution, be referred to a Committee it may stay the criminal prosecution, and report the matter to the central Government with a view to such reference being made. (2) On receipt of a report under subsection (1), the Central Government may refer the case to a Committee, or may direct the Court to proceed with the trial. " From a bare perusal of the provisions, in my opinion, it is clear that the discretion has been given to the trial court to form an opinion from the facts and circumstances of the case as to whether in lieu of a prosecution, the same may be referred to a Committee using of word "may" in Sec.81 cannot be held to be mandatory rather it is discretionary. I am of the view that in exercising power under Article 226 of the Constitution in a case for quashing of a proceeding, the High Court will not give a direction to the trial court to use his discretion. Thus, the second contention of dr. Mazumdar also has no substance. 15 The question, as to whether the proceeding against the petitioners should be allowed to continue any further taking into consideration of the fact that the petitioners have suffered the ordeal of this prosecution for last several years, has to be considered in the light of various decisions of the apex Court as well as other High courts. 16. It is not in dispute that almost all the witnesses have been examined by the prosecution except three. This application was filed on 29-4-1993 and further proceeding of the court below was stayed by this Court on 30-4-1993. At least for these two years the trial court was not in a position to proceed with the trial any further. Before the proceeding was stayed, three more witnesses were to be examined and thus it is clear that the petitioners moved this application during the pendency of the trial. 17. At least for these two years the trial court was not in a position to proceed with the trial any further. Before the proceeding was stayed, three more witnesses were to be examined and thus it is clear that the petitioners moved this application during the pendency of the trial. 17. In the case of Amar Chand agrawala V/s. Shanti Bose, reported in air 1973 SC 799 , the Apex Court has cautioned by observing that where the accused moved the High Court at the time when the trial was almost coming to a close and what remained to be done, the examination of two prosecution and open court witnesses, the High court ought not to have quashed the charge and entire proceedings rather to allow the proceedings to go on and to come to its logical conclusion, one way or other, In my opinion, the aforesaid decision is applicable with all its force in the present case. Similarly, in the case of State of punjab V/s. Devinder Kumar, reported in air 1983 SC 545 , the Supreme Court has again deprecated the quashing of criminal proceeding at a prematured stage in exercising of its extraordinary jurisdiction under Sec.482 of the code. In that case also the prosecution was still to lead its evidence and the supreme Court observed that it is neither expedient nor possible to arrive at a conclusion at this stage on the guilt or innocence of the accused on the material before the Court. In the present case onus is on the prosecution to prove the guilt of the petitioners and is a matter to be considered by the trial court and the High court, in my view cannot convert itself in the position of the trial court in exercising its discretionary jurisdiction. 18. The other argument of Mr. Mazumdar regarding violation of any regulation also to be considered by the court below, which point is inter-linked with the question of fact and cannot be gone into by this Court. 19. In the result, I find no merit in this application and the same is dismissed. However, the trial court is directed to dispose of the matter as expeditionsly as possible without any further delay. It is expected that the petitioners and the prosecution will cooperative with the court in disposing of the same. Application Dismissed.