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2002 DIGILAW 263 (JHR)

G. N. Verma v. State

2002-02-28

VIKRAMADITYA PRASAD

body2002
Order The main question involved in this application under Section 482, Cr PC is follows : "Whether a person other than Agent can be fastened with the criminal liability for any offence under the Mines Act on the ground that he is a deemed Agent?" 2. The question aforesaid arises out of the short facts that the Inspector of Mines filed complaint case No. CIII 323/2000 against (1) G.N. Verma, C.G.M. & Deemed Agent, (2) B.K. Sinha, Dy. C.M.E. cum-Agent (3) B.K. Ghosh, Manager, all are of Karkata Colliery, for their trial for the offences, under Section 72B of the Mines Act, 1952, that they had violated certain prohibitive order issued under Section 22A(2) of the Mines Act, (hereinafter referred to as the Act). 3. The defence case is that there is no violation of Mines Sefety Rules, rather the said Colliery was categorised as the best Mines of B groups colliery of the Central .Coalfields Ltd. The violation of any prohibitive orders was denied. The details of the case of the prosecuting and of the defence are not being given as they are not relevant for the purpose of the issue in hand. 4. The relevant status of accused as appearing from the paragraph 4 of the complaint petition is as follows:- (i) G.N. Verma, accused No.1 (here the petitioner) was the Chief General Manager/Deemed Agent and was exercising supervision, management and control of the mine. (ii) B.K. Sinha, accused No.2, was the Agent. (iii) B.K. Ghosh, accused No.3, was the Manager of the aforesaid Mine. They were all bound to see that all mining operations were conducted in accordance with the provisions of the Act 1952, and the Rules, Regulations and Orders made therein. 5. The petitioner has come out with a case that when there was an Agent for the said Mines, the other persons cannot be made accused in the case for violation of any provisions of the Act, Rules or Regulations made therein. 6. The learned counsel appearing for the petitioner has stated that his plea is covered by a decision reported in 1983 BLT (Rep) 97, wherein a Division Bench of this Court was seized with exactly similar situation' and concluded as follows:- "7. 6. The learned counsel appearing for the petitioner has stated that his plea is covered by a decision reported in 1983 BLT (Rep) 97, wherein a Division Bench of this Court was seized with exactly similar situation' and concluded as follows:- "7. No case was cited at the Bar where a situation, of the present nature was directly under consideration, namely, where an appointed agent being already there any person coming under the exclusive definition of the term 'agent' was also prosecuted. I, however, find a decision of exactly this nature of the Bombay High Court (Nagpur Bench) in the case of M.V. Birapurkar and another vs. The State and another, Cr Rev. 30 of 1980 and another decided on 31st July, 1980, 1st August, 1980 where it was clearly observed that when an individual is specifically appointed to act as the representative of the owner in respect of the Management, control and direction of a particular mine or any part thereof, no other person can be deemed to be an agent in relation to that mine simply because he is an officer superior to the manager of the mine and exercises some functions relating to management, control and direction of the mine along with other mines within his jurisdiction. I find myself in respectful agreement with the view expressed by the learned Judge In the above case and would, accordingly hold that neither of the petitioners can be proceeded against for the offence in question and their prosecution would be an abuse of the process of the Court." 7. Relying on the above decision, learned counsel for the petitioner argued that in the complaint petition itself, the accused No.2 has been admitted to be the Agent of the said Colliery, whereas there was already an Agent appointed and as such there could be no question for declaring the petitioner as a Deemed Agent and to prosecute him. He further argued that had it been a case that there would not have been a duly appointed Agent, then in that circumstance, because of his position, he could have been deemed to be an Agent. But as there is already a duly appointed Agent, he could not be treated a Deemed Agent and cannot be fastened with the liability of any offence under the Act. 8. But as there is already a duly appointed Agent, he could not be treated a Deemed Agent and cannot be fastened with the liability of any offence under the Act. 8. I have given my anxious thought whether or not the petitioner comes within the purview of the definition of the 'Agent'. The cited case was of the year 1983 when the definition of Agent was as follows:- "agent' when used in relation to a mine means any individual, whether appointed as such or not, who acts as the representative of the owner in respect of the management, control and direction of the mine or of any part thereof and as such superior to a manager under this Act." The judgment cited has dealt with the representative aspect of the person, but subsequently there was amendment in the Act in the definition of the word 'agent'. It reads as follows:- "2(c). "agent", when used in relation to a mine, means every person, whether appointed as such or not, who, acting or purporting to act on behalf of the owner, takes part in the management, control, supervision or direction of the mine or of any part thereof." This amendment appears to have been brought in the year 1983. 9. I have also examined whether or not owing to the aforesaid change in the definition of the word, 'agent', the ratio of the decision cited above applies in the facts and circumstances of the case. 10. The Division Bench has discussed in detail the effect of Section 18(5)(i) of the Act and dealt with the fact whether, even in view of this statutory constructive criminal liability upon the owners and agent, they can be prosecuted or not if there is a duly appointed agent. I am tempted to cite paragraph 5 of the cited decision:- "5. The argument of Mr. Balbhadra Prasad Singh, who appeared in support of this application, was that since R.S. Gill, the third accused, as the duly appointed agent of the colliery in question, there could be no occasion for the complainant to fit in the second category aforesaid any other person inasmuch as the necessity of finding out such a person would arise only in case where there was not a directly appointed agent. He further argued that inasmuch as it was a penal law, strict construction should be put to this provision. He further argued that inasmuch as it was a penal law, strict construction should be put to this provision. In support of this proposition he also referred to certain authorities, some of which I may presently notice. In the case of London and North Eastern Railway Company and Berriman, 1946 AC 278 Lord Simonds quoted with approval the following observations of Lord Easher N.K. in the case of Tuck & Sons. V. Priester, (1887)19 QBD 629,638. "We must be very carefully in construing that section, because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled Rule for the construction of penal sections." The above authority was also followed by the Supreme Court of India in the case of Tolaram Relumal and another v. The State of Bombay, AIR 1954 SC 496 . Subsequently, in paragraph 6 the same situation was reiterated. 11. The effect of the aforesaid decision is that as the accused No.2 in this case was the agent as per own admission of the prosecution, in that circumstance, the question of the petitioner being a Deemed Agent does not arise and therefore, even in the face of the amended definition of the word 'agent', he will not fall in the category of Deemed Agent. 12. Learned counsel appearing for the opposite parties submitted that if this petition is allowed, then subsequently other persons may also come praying for the same relief. I think that this argument cannot be upheld and appreciated in law. Each case has to be decided in its own merit. His argument was that since the petitioner holds the position of Chief General Manager, he is liable for the lapses in the Mines of which he was Chief General Manager. 13. I feel that the construction liability definitely rests on the owner, agent and manager under Section 18(5) of the Act and it was the intention of the Legislature. His argument was that since the petitioner holds the position of Chief General Manager, he is liable for the lapses in the Mines of which he was Chief General Manager. 13. I feel that the construction liability definitely rests on the owner, agent and manager under Section 18(5) of the Act and it was the intention of the Legislature. But as the Division Bench discussed this matter and did not fasten the liability even of a constructive nature on the petitioners therein and the opposite party did not prefer any appeal, the law as pronounced by the Division Bench of this Court (the parent High Court) cannot be over-looked by this Bench sitting singly but, I feel that there is great weight in the argument of the learned counsel for the opposite party. 14. In the result, I consider it proper that the import of Section 18(5) of the Act requires further elucidation and the Division Bench ruling aforesaid requires further consideration. Let this case be placed before the Hon'ble Chief Justice for being placed before the appropriate Division Bench. The order dated 23.8.2001 will continue till disposal of this matter.