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2014 DIGILAW 873 (JHR)

Hare Kant Jha v. State of Jharkhand

2014-08-14

H.C.MISHRA

body2014
ORDER : Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner has challenged the entire criminal proceeding against him, in the FIR in Boarijore (Lalmatia) P.S. Case No. 93 of 2001, instituted for the offence under Sections 304, 114 and 120-B of the Indian Penal Code and Sections 21 and 23 of the Mines and Minerals (Regulation and Development) Act, 1957 (herein after referred to as the 'MMDR Act'). 3. The FIR was lodged against all the management staff right from top to bottom, of the Eastern Coalfields Limited, all the staff of CISF and all the security staff of Eastern Coalfields Limited, on the basis of the self statement of the Officer-in-charge of Lalmatia Police Station, who was informed on 26.9.2001 that in the mines of Eastern Coalfields Limited, some persons were committing theft of coal in course of which, there was an accident, in which several persons were buried in the mines. Upon information, the officer-in-charge went to the place of occurrence, and as it was not possible to remove the heap of earth, the pay loader was called for from the Eastern Coalfields Management, and with the help of pay loader, the heap of earth was removed, in which twelve dead bodies were recovered. The case was instituted against the accused persons alleging that they were knowing about the illegal mining by the unauthorised persons from before, but even then no information had been given to the concerned authorities. The FIR was accordingly, lodged against the accused persons for the offences under Sections 304, 114 and 120-B of the Indian Penal Code and Sections 21 and 23 of the MMDR Act. The petitioner being the Chief General Manager of the Project has also been made accused in this case. 4. This application was admitted for hearing by order dated 30.9.2002 and further proceedings against the petitioner was stayed. 5. Learned counsel for the petitioner has submitted that the petitioner has falsely been implicated in this case, being the Chief General Manager of the Project. It is submitted by learned counsel that the accident had taken place due to theft of coal by unauthorised persons in the mines, and the offence, if any, against the petitioner is made out only under the provisions of the Mines Act, 1952. It is submitted by learned counsel that the accident had taken place due to theft of coal by unauthorised persons in the mines, and the offence, if any, against the petitioner is made out only under the provisions of the Mines Act, 1952. It is submitted by learned counsel for the petitioner that there being special Act governing the present case, no offence can be made out under the general provisions of Section 304 of the Indian Penal Code against the petitioner. It is further submitted that Section 75 of the Mines Act, clearly provides that 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 authorised in this behalf by general or special order in writing by the Chief Inspector. Learned counsel has pointed out that the present FIR has been lodged by none of these authorities. Learned counsel has also submitted that Section 79 of the Mines Act, clearly lays down that no Court shall take cognizance of any offence under this Act, unless complaint thereof has been made. Learned counsel has accordingly, submitted that the FIR in the present form could not be instituted against the petitioner and the entire criminal proceeding against the petitioner is absolutely vitiated. 6. As regards the offences under the MMDR Act, it is submitted that under Section 22 of the MMDR Act, there is complete prohibition for taking cognizance except on complaint made in writing by the authorised person, and as such the lodging of the FIR is against the scheme of law, which cannot be sustained in the eyes of law. Accordingly, it is submitted that the FIR could not be lodged by the informant in the present case even for the alleged offences under the MMDR Act, and accordingly, entire criminal proceeding against the petitioner is vitiated and the same cannot be allowed to be continued. 7. Learned A.P.P. for the State has opposed the prayer submitting that in the present occurrence, twelve persons have lost their lives, and accordingly, offence is clearly made out against the petitioner under the Indian Penal Code also. 8. 7. Learned A.P.P. for the State has opposed the prayer submitting that in the present occurrence, twelve persons have lost their lives, and accordingly, offence is clearly made out against the petitioner under the Indian Penal Code also. 8. Having heard counsels for both the sides and upon going through the FIR, I find that there is allegation in the FIR that the accident had taken place in the mines as unauthorized persons were committing theft of coal in the mines. Accordingly even if allegations in the FIR are accepted in entirety, the offence, if any, made out against the petitioner relates to contravention of the provisions of the Mines Act, specially Sections 23, 70, 72, 72-C of the Mines Act, which relate to the accident in the mines, causing loss of life. Section 79 of the Mines Act clearly lays down that no Court shall take cognizance of any offence under this Act, unless complaint thereof is made by the competent authority within the prescribed period. Section 75 of the Act clearly lays down the persons, who are authorized to make the complaint for the offence under the Act. 9. In view of the aforementioned discussions, I am of the considered opinion that no FIR could be lodged against the petitioner for the accident, that had taken place in the mines and only the written complaint could be filed in the competent Court by any of the competent authorities mentioned under Section 75 of the Mines Act. Even for the offence under the MMDR Act, if any, against the petitioner, the prosecution could be initiated only upon the complaint in writing, filed in the competent Court by the competent authority. I am of the considered view that the FIR in the present form could not be instituted against the petitioner for the offences alleged, and the criminal proceeding on the basis of the police case is absolutely vitiated and cannot be continued against him. 10. Accordingly, the FIR in Boarijore (Lalmatia) P.S. Case No. 93 of 2001, so far as it relates to the petitioner, and the entire criminal proceeding against the petitioner in the said case, are hereby, quashed. This application is accordingly, allowed.