Research › Search › Judgment

Jharkhand High Court · body

2013 DIGILAW 1163 (JHR)

Jullu Rehman v. State of Jharkhand

2013-10-23

R.R.PRASAD

body2013
ORDER : 1. Heard learned counsel appearing for the petitioner and learned counsel appearing for the State. 2. This application has been filed for quashing of the order dated 17.9.2011 passed by the Chief Judicial Magistrate, In-charge, Pakur in G.R.No.386 of 2011 [Pakur (Malapahari) P.S. Case no.153 of 2011) whereby and whereunder cognizance of the offence punishable under Sections 304/307/34 of the Indian Penal Code and also under Section 3/4 of the Explosive Act which seems to have been wrongly recorded in place of Explosive Substance Act has been taken against the petitioner. 3. The case of the prosecution as it appears from the FIR is that while the informant and his brother namely, Deepak Mandal were engaged in quarrying of stones at the instance of this petitioner and Amirul Sk., an accident took place due to explosion of the explosive substance, as a result of which informant and his brother sustained injuries resulting into the death of the brother of the informant. 5. The matter was investigated upon. On completion of investigation, charge sheet was submitted, upon which cognizance of the offence punishable under Sections 304/307/34 of the Indian Penal Code and also under Section 3/4 of the Explosive Act which seems to have been wrongly recorded in place of Explosive Substance Act was taken against the petitioner, vide order dated 17.9.2011 which is under challenge. 5. Mr. Gautam Kumar, learned counsel appearing for the petitioner submits that whatever allegation is there in the F.I.R., that would be the subject matter for prosecution under the Mines Act, 1952 and in fact, the prosecution has been launched under the Mines Act by the Inspector of Mines. 6. In this regard it was further submitted that the Mines Act being a special legislation will have overriding effect upon the provisions of the general law and therefore, any prosecution under the general law is not permissible and hence, the order taking cognizance is fit to be quashed. 7. A counter affidavit has been filed wherein it has been reiterated that since on account of explosion of the explosive substance, the informant as well as his brother sustained injuries. Subsequently, brother of the informant succumbed to his injuries. The petitioner is rightly being prosecuted for the offence punishable under Sections 304/307/34 of the Indian Penal Code as the accident occurred on account of blast of the explosive substance in the mines. Subsequently, brother of the informant succumbed to his injuries. The petitioner is rightly being prosecuted for the offence punishable under Sections 304/307/34 of the Indian Penal Code as the accident occurred on account of blast of the explosive substance in the mines. The explosive substances were being used without there being any licence and thereby the order taking cognizance never warrants to be quashed. 8. In the context of the submission advanced on behalf of the parties, one needs to take notice of the provision as contained in Section 4 of the Code of Criminal Procedure which deals with the matter regarding investigation and enquiry of the case falling under the Indian Penal Code or any Special Act which reads as under: “Trial of offence under the Indian Penal Code and other law:- 1. All offences under the Indian Penal Code (46 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. 2. All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” 9. Thus, sub-Section (1) of Section 4 of the Code provides that in absence of any specific provision to the contrary nothing in the code shall affect any special or local law for the time being in force. However, the conjoint effect of that provision and sub-Section (2) of Section 4 would be as follows: “1. That all offences, whether under the penal code or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code. 2. This rule is subject to qualification that in respect of offences under other laws that is to say, under laws other than Indian Penal Code, if there be an enactment regulating the manner of investigation, inquiring into, trying or otherwise dealing with such offences, such enactment will prevail over the code. 3. The provisions of special or local law will prevail over the provisions contained in the Code unless there is specific provisions to the contrary.” 10. 3. The provisions of special or local law will prevail over the provisions contained in the Code unless there is specific provisions to the contrary.” 10. Having taken notice of the provision of Section 4 of the Code of Criminal Procedure, one is required to take notice of Section 72(C) of the Mines Act which reads as follows: 72C. Special provision for contravention of law with dangerous results –(1) Whoever contravenes any provision of this Act or of any regulation, rule or bye law or of any order made thereunder (other than an order made under sub-section (1A) or sub-section (2) or sub-section (3) of Section 22 or under subsection (2) of Section 22A), shall be punishable - (a) if such contravention results in loss of life, with imprisonment which may extend to two years, or with fine which may extend to five thousand rupees, or with both; or (b) if such contravention results in serious bodily injury, with imprisonment which may extend to one year, or with fine which may extend to three thousand rupees, or with both; or (c) if such contravention otherwise causes injury or danger to persons employed in the mine or other persons in or about the mine, with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both: [Provided that in the absence of special and adequate reasons to the contrary to be recorded in writing in the judgment of the court, such fine, in the case of a contravention referred to in clause (a), shall not be less than three thousand rupees]. (2). Where a person having been convicted under this section is again convicted thereunder, he shall be punishable with double the punishment provided by sub-section (1). 3. Any court imposing or confirming in appeal, revision or otherwise a sentence of fine passed under this section may, when passing judgment, order the whole or any part of the fine recovered to be paid as compensation to the person injured or, in the case of his death, to his legal representative: Provided that if the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if any appeal has been presented, before the decision of the appeal. 11. 11. From perusal of the said provision, it does appear that whosoever does commit any overt act in contravention of the provision of the Act, Regulation, Rule or Bye-laws resulting into loss of life, it is punishable under Section 72C (1)(a) of the Act. 12. Here in the instant case, it does appear from the prosecution report lodged for the commission of offence under Section 72C (1)(a) of the Mines Act that on account of contravention of the provision of the Mines Act as well as other provision of the regulation and Mines Rules, the accident took place in which informant got injury and his brother lost his life. 13. In that event, any prosecution under the general law of the petitioner would be bad. 14. Thus, the entire proceeding of Pakur (Malpahari) P.S. Case no.153 of 2011 including the order taking cognizance is hereby quashed. 15. In the result, this application stands allowed.