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2013 DIGILAW 928 (JHR)

Sudip Kumar Mukhopadhyay v. State of Jharkhand

2013-07-31

R.R.PRASAD

body2013
Order I.A. No. 3868 of 2013 Learned counsel for the petitioners submits that earlier this case had been filed for quashing of the order taking cognizance. While the matter was pending, an application filed for discharge was rejected vide order dated 28.5.2013 which has been challenged by way of interlocutory application and therefore, the prayer made in the interlocutory application be allowed to be incorporated in the main application. 2. Prayer made in the interlocutory applications is hereby allowed. Let interlocutory application form part of the main application. 3. Aforesaid I.A. stands disposed of. Cr. M.P. No. 87 of 2011 4. Heard learned counsel appearing for the petitioners and learned counsel appearing for the State. 5. The case of the prosecution is that in spite of District Administration writing to Director General, Mines to close down one mine being unsafe, it was never closed as a result of which part of it caved in due to which two females died. This happened due to negligence on the part of the officials of BCCL and thereby First Information Report was lodged which was registered as Katras P.S. Case No. 5 of 2010 under Sections 304/34 of Indian Penal Code. After submission of chargesheet when cognizance was taken, that order was challenged. Subsequently, when an application, filed by the petitioners for discharge, was rejected vide order dated 28.5.2013, that order was also challenged. 6. Mr. Indrajit Sinha, learned counsel appearing for the petitioners, submits that the allegations, upon which the First Information Report has been lodged, would fall within the mischief of the provisions as enshrined in Section 72-C of the Mines Act, 1952 which is a special legislation and will have overriding effect upon the provision of General Law and therefore, any prosecution of the petitioners, who happen to be the then Project Officer, Manager, Senior Overman, Senior Survey Officer and Superintendent of Mines, under the General Law would not be permissible. 7. Learned counsel in support of his submission has relied upon a decision rendered in a case of Binod Kumar Das and Ors. Vs. State of Jharkhand and Another [ 2008(1) JCR 601 (Jhr.)] and also in a case of Rabindra Agrawal Vs. State of Jharkhand and Another [2010(2) JCR 667(Jhr.)] [ : 2010(2) JLJR 36]. 8. 7. Learned counsel in support of his submission has relied upon a decision rendered in a case of Binod Kumar Das and Ors. Vs. State of Jharkhand and Another [ 2008(1) JCR 601 (Jhr.)] and also in a case of Rabindra Agrawal Vs. State of Jharkhand and Another [2010(2) JCR 667(Jhr.)] [ : 2010(2) JLJR 36]. 8. In the context of the submission advanced on behalf of the petitioner, one needs to take relevant provision to ascertain whether the allegation, upon which the petitioners are being prosecuted under the General Law, falls within the ambit of relevant provisions of the Mines Act stipulating therein about the prosecution on account of contravention of the provision of the Act, Rules and Regulations. In this respect, I may refer to Section 72-C of the Mines Act which reads as follows:- "72-C. 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 subsection (2) or sub-section (3) of Section 22] [or under sub-section (2) of Section 22-A], 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"." 9. Further, one may take notice of Section 75 of the Mines Act which does speak about the prosecution of owner, agent or manager. The said provision reads as follows:- "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 authorized in this behalf by general or special order in writing by the Chief Inspector." 10. On perusal of the aforesaid provision, it does appear that on account of contravention of any of the provisions of the Act, Rule or Regulation, if accident takes place causing loss of life, one would be prosecuted under Section 72-C of the Mines Act and the mechanism for prosecuting in such situation has also been prescribed which is there in Section 75 of the Act. 11. 11. Thus, it does appear that the allegation, upon which the petitioners are being prosecuted under the General Law, certainly falls within the parameter of the provision as is there in Section 72-C of the Act. In that event, the petitioners are not liable to be prosecuted under the General Law in view 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 follows:- "4. Trial of offence under the Indian Penal Code and other laws.-(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, " 12. Thus, sub-section (1) of Section 4 of the Code provides that in absence of any specific prevision 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. 13. Thus, any prosecution for contravention of the provision of the Mines Act, Rules or Regulations needs to be instituted in accordance with the provision of the Mines Act. In other words, prosecution under the General Law in a situation stated above is not permissible. 14. 13. Thus, any prosecution for contravention of the provision of the Mines Act, Rules or Regulations needs to be instituted in accordance with the provision of the Mines Act. In other words, prosecution under the General Law in a situation stated above is not permissible. 14. Further, it appears that according to the case of the prosecution, accident took place as the mine was being run unauthorizedly without adopting safety measures by the officials of BCCL though according to the case of the petitioners, it was being run unauthorizedly (sic) under the order of DGMS (Annexures-2, 2/1 and 2/2). Still the petitioners are being prosecuted without there being special legislation of negligence and thereby it can be presumed that the petitioners are being prosecuted under the principle of vicarious liability which is not permissible, as only the person who commits any overt act towards commission of offence is liable to be prosecuted under Section 304 of the Indian Penal Code. The provision as contained in Section 304 of Indian Penal Code reads as under:- "304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 15. From its perusal, it does appear that the person, who commits offence of culpable homicide; is liable to the prosecuted under Section 304 of Indian Penal Code. 16. Here it is never the case of the prosecution that on account of negligence on the part of these petitioners, accident took place as a result of which two persons died. In that view of the matter, the entire prosecution becomes bad. 17. Accordingly, the order, under which prayer for discharge has been rejected, is hereby set aside. Consequently, the petitioners are discharged from the liability. 18. In that view of the matter, the entire prosecution becomes bad. 17. Accordingly, the order, under which prayer for discharge has been rejected, is hereby set aside. Consequently, the petitioners are discharged from the liability. 18. In the result, this application is allowed.