Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 969 (GAU)

Nirod Ranjan Deka v. State (GOVT. of Assam)

2014-11-03

M.R.PATHAK

body2014
1. The petitioner Sri Nirod Ranjan Deka, has filed this Criminal Revision Petition under section 401 read with section 397 of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 20.4.2006 passed by learned Sessions Judge, Tinsukia in Criminal Appeal No. 41(3)/2005, by which the learned Appellate Court partly allowed the said Criminal Appeal of the accused petitioner and two others, set aside the order of conviction under section 72C(1)(a) of the Mines Act, 1952 for violation of the regulation 37(2) of the Oil Mines Regulations, 1984, upholding the conviction under section 72C(1)(a) of the Mines Act for violation of the regulation 20(4)(a) and 20(5) of the Oil Mines Regulations, 1984 and modified the sentence to the extent of payment of fine of Rs. 5,000 only, setting aside the sentence of rigours imprisonment for six months as imposed upon the petitioner by the learned Chief Judicial Magistrate, Tinsukia in CR Case No. 38C of 2002, directing the petitioner to pay the said fine amount of Rs. 5,000 within one month, observing that the entire fine amount to be realized from the petitioner be paid to the legal representative of the deceased. 2. Brief facts of the case is that on 12.9.2001 two numbers of rig-pumps (also called as mud-pumps) of the drilling rig were to place at their respective positions on the foundations at the new location 'DET' of the ‘Naharkatiya Oil Mines' of M/s. Oil India Ltd., Duliajan and the those pump were to properly aligned with the foundation pits (holes) provided for grouting the foundation bolts for their anchorage. Each of the said rig pumps with its motor was weighed about 26 tons. For the said purpose three cranes were available at the site, out of which two had the maximum lifting capacity of 30 tons (Crane Nos. 6035 and 6038) and one had the maximum lifting capacity of 18 tons (Crane No. 6039). The said rigging up operations was being carried out under the supervision of one Sidheswar Buragohain, Junior Engineer-II of M/s. Oil India Ltd. After placing one of the said rig pumps in its location with the help of two cranes, having maximum capacity of 30 tons (Crane Nos. 6035 and 6038), one such crane (Crane No. 6038) had gone out of the order. 6035 and 6038), one such crane (Crane No. 6038) had gone out of the order. As such, to shift the other rig pump and place it on its desired location, one crane with maximum lifting capacity of 30 tons (Crane No. 6035) and other crane with the maximum lifting capacity of 18 tons (Crane No. 6039), which together can lift about 48 tons, were used as the rig pump with its motor weighed about 26 tones only. While the said rig pump was almost placed on its desired location by both the cranes and as slight alignment was required by shifting the pump by 3 to 4 inches to the already placed other rig pump for its exact placement with its foundation pits, the load of the said pump from the pump end of the rig pump from the side of Crane No. 6035 (lifting capacity of 30 tons) operated by one R.N. Saikia was taken off by loosening the slings and tried to align the pump with the other crane No. 6039 (lifting capacity of 18 tons) operated by one Nabin Talukdar. At that point of time Tilak V Hazarika, Mechanic-II (Pump), Grade-VIII, Sangram Phukan, Tradesman-V of Oil India Ltd. and others were between the two rig pumps to see the alignment of the pump with respect to its foundation pits. When the said rig pump was shifted/dragged by few inches with the help of the crane No. 6039 (lifting capacity of 18 tons), suddenly the boom of the said crane collapsed and fell upon said Tilak Hazarika and Sangram Phukan and caused serious bodily injuries on them with injuries on their head and other parts of the body. Both the injured persons were immediately sent for emergency treatment to the Oil India Hospital, Duliajan and thereafter to Dibrugarh for special treatment. While at hospital at Dibrugarh, on 15.9.2001 said Tilak Hazarika, succumbed to his injuries and the other injured person Mr. Sangram Phukan recovered from his injuries after a long treatment. 3. Both the injured persons were immediately sent for emergency treatment to the Oil India Hospital, Duliajan and thereafter to Dibrugarh for special treatment. While at hospital at Dibrugarh, on 15.9.2001 said Tilak Hazarika, succumbed to his injuries and the other injured person Mr. Sangram Phukan recovered from his injuries after a long treatment. 3. As required under regulation 7 of the Oil Mines Regulations, 1984, a regulation framed under the Mines Act, 1952, the Manager of Naharkatiya Oil Mines, Oil India Ltd., Duliajan on 15.9.2001 issued Notice in Form-IVA (Exhibit-4) to (i) the Chief Inspector of Mines, Dhanbad-826001, (ii) the Regional Inspector of Mines, Sitarampur, Region No. 2, (iii) the concerned District Magistrate and (iv) the Deputy Director of Mines Safety, Digboi Sub-Region, Digboi intimating them about the aforesaid accident at location 'DEI" on 12.9.2001 as well as about the injuries of the aforesaid two personnel of Oil India Ltd. After the death of injured personnel Tilak Hazarika on 15.9.2001, said Manager of Naharkatiya Oil Mines, Oil India Ltd., Duliajan, issued a revised Notice in Form-IVA (Exhibit-5) and another Notice in Form-IVB under Regulation 7 of the said 1984 Regulations dated 22.9.2001 (Exhibit-6) to the aforesaid four addressees. 4. On receipt of the aforesaid information, one Shri Narain Singh, Deputy Director of Mines Safety, Digboi Sub-Region, Digboi issued Notice of Enquiry with regard to the aforesaid fatal accident dated 12.9.2001 at the drill site location ‘DET’ at Naharkatiya Oil Mines (Exhibit-7), inspected the site, inquired in to the matter and submitted his report on 26.11.2001 before the Director of Mines Safety, Region No. 2, Sitarampur, District-Burdwan, West Bengal (Exhibit-8). 5. In the said Inquiry Report dated 26.11.2001 with regard to the aforesaid fatal accident dated 12.9.2001, the said Deputy Director of Mines Safety, Digboi Sub-Region held responsibility on four accused persons and they were, namely, (i) Sidheswar Buragohain, Junior Engineer-II; (ii) Apurba Arandhara, Transport Engineer; (iii) present petitioner Nirod Ranjan Deka, Deputy Chief Engineer Transport (Field) and Installation Manager;-and (iv) Sri Dipti Kr. Banik, General & Mines Manager, who were working in their said capacities under M/s. Oil India Ltd. on the date of the accident. Along with said Inquiry Report dated 26.11.2001 (Exhibit-8), the site plan (Exhibit-9) and Post Mortem Report of the deceased victim Tilak Hazarika dated 15.9.2001 (Exhibit-10) were also enclosed. 6. Banik, General & Mines Manager, who were working in their said capacities under M/s. Oil India Ltd. on the date of the accident. Along with said Inquiry Report dated 26.11.2001 (Exhibit-8), the site plan (Exhibit-9) and Post Mortem Report of the deceased victim Tilak Hazarika dated 15.9.2001 (Exhibit-10) were also enclosed. 6. On the basis of said Inquiry Report dated 26.11.2001, the Director of Mines Safety, Region No. 2, Sitarampur, District-Burdwan, West Bengal, on 1.02.2002 issued show-cause notices to all the above named four accused persons (Exhibits-11 to 14), including the present petitioner, with regard to the serious accident occurred on 12.9.2001 which turn fatal on 15.9.2001 on the death of said Tilak Hazarika at the drill site location ‘DEI’ of Naharkatiya Oil Mine and directed them to show-cause within 21 days from the issuance of the said show-cause letter as to why action shall not be taken against them as provided under the provisions of the Mines Act, 1952 and Oil Mines Regulations, 1984. 7. On 15th March 2002 said Narain Singh, the Deputy Director of Mines Safety, Digboi Region, Digboi, with his office report dated 13.3.2002, as a complainant filed a complaint petition under section 200, Cr.PC (Exhibit-15) before the Chief Judicial Magistrate, Tinsukia against the above named four accused persons, namely, (i) Sidheswar Buragohain, (ii) Apurba Arandhara, (iii) present petitioner Nirod Ranjan Deka, and (iv) Sri Dipti Kr. Banik for trial of offences under sections 72C(1)(a), 72C(1)(b) and 73 of the Mines Act, 1952, which was registered and numbered as C.R. No. 38C of 2002 in the Court of learned Chief Judicial Magistrate, Tinsukia and on 5.9.2002 the Trial Court took cognizance of the offences under sections 72C(1)(a), 72C(1)(b) and 73 of the Mines Act, 1952 against the said four accused persons. 8. In the trial, prosecution side examined four witnesses and placed fourteen exhibits. But the accused persons of the case neither examined any witnesses nor exhibited any documents with regard to their defence. However, on completion of recording of the evidence of the prosecution, the trial court on 18.11.2004 recorded statements of the aforesaid four accused persons under section 313 of the Cr.PC including that of the petitioner. 9. But the accused persons of the case neither examined any witnesses nor exhibited any documents with regard to their defence. However, on completion of recording of the evidence of the prosecution, the trial court on 18.11.2004 recorded statements of the aforesaid four accused persons under section 313 of the Cr.PC including that of the petitioner. 9. The Chief Judicial Magistrate, Tinsukia, on appreciation of the evidence of the case, by his judgment and order dated 26.7.2005 passed in said CR Case No. 38C of 2002 convicted the accused persons, namely, Sidheswar Buragohain, Apurba Arandhara and the present petitioner Nirod Ranjan Deka under section 72C(1)(a) of the Mines Act, 1952 and sentenced them to undergo rigorous imprisonment for six months with fine of Rs. 5,000, in default to undergo simple imprisonment for two months, directing that the period of detention during trial and enquiry shall be set off against the period of imprisonment. However, learned CJM, Tinsukia by the said judgment and order dated 26.7.2005 acquitted the accused person, namely, Dipti Kr. Banik, Mine Manager, as the trial court came to a conclusion that he did not violate any provisions of Oil Mines Regulations 1984. 10. Being aggrieved with the aforesaid judgment and order of conviction and sentence dated 26.7.2005 of the trial court, the said three accused persons, including the present petitioner, preferred Criminal Appeal No. 41 (3) of 2005 before the Sessions Judge, Tinsukia. During pendency of the said criminal appeal, accused appellant Sidheswar Buragohain expired. After hearing the parties, learned Sessions Judge, Tinsukia by the impugned judgment and order dated 20.04.2006 partly allowed the said Criminal Appeal No. 41(3)/2005, set aside the conviction of the accused appellant Apurba Arandhara; upheld the conviction of accused the appellant Nirod Ranjan Deka, the present petitioner under section 72C(1)(a) of the Mines Act, 1952 for violation of regulation 20(4)(a) and 20(5) of the Oil Mines Regulations, 1984, set aside the sentence of rigorous imprisonment for six months and modified the sentence to the payment of fine of Rs. 5,000 only and directed that the entire fine amount that is to be realised, shall be paid to the legal representative of the deceased within one month. Hence, this Criminal Revision Petition. 11. Heard Mr. A.K. Bhattacharyya, learned senior advocate with senior advocates, Mr. S.N. Sarma and Mr. K. Agarwal, assisted by Mr. D.K. Bhattacharyya, learned advocate for the petitioner. Also heard Mr. Hence, this Criminal Revision Petition. 11. Heard Mr. A.K. Bhattacharyya, learned senior advocate with senior advocates, Mr. S.N. Sarma and Mr. K. Agarwal, assisted by Mr. D.K. Bhattacharyya, learned advocate for the petitioner. Also heard Mr. S.C. Kayal, learned Assistant Solicitor General of India for the sole opposite party. 12. Mr. A.K. Bhattacharyya, learned senior advocate appearing for the accused petitioner submitted that the prosecution side did not exhibit and/or placed any notification and/or declaration and/or order before the trial court, i.e., learned Chief Judicial Magistrate, Tinsukia for its necessary satisfaction, to show that the concerned Chief Inspector of Mines under the Mines Act, 1952 appointed and/or declared and/or posted the alleged complainant Narain Singh (PW.1) as the Deputy Director of Mines safety, Digboi Sub-Region, Digboi and also as the Inspector of Mines over the local area or areas of ‘Naharkatiya-Oil Mines’ and at Digboi Sub-Region, Digboi as required under the provisions of sections 5(1) and 6(3) of the Mines Act, 1952. As such Mr. Bhattacharyya, learned senior counsel submitted that the notice of inquiry, the inquiry proceeding and the inquiry report and the complaint of the instant case are without any authority of law and, therefore, the impugned judgment and order of conviction dated 20.4.2006 passed by learned Sessions Judge, Tinsukia should be set aside and quashed. 13. Mr. Bhattacharyya, learned senior counsel submitted that the alleged complainant Narain Singh in his said complaint dated 13.3.2002, in the cause title 'Complainant' stated that he was appointed as Inspector of Mines under section 5 of the Mines Act, 1952 and in Para-VIII of the said complaint further stated that vide Gazette of India Notification dated 30.1.1990 he had been authorised by the Chief Inspector of Mines under section 75 of the Mines Act to institute prosecution on his behalf (Exhibits-1 and 2). Mr. Bhattacharyya also submitted that said Narain Singh (PW.1) in his deposition before the trial court on 5.12.2012 stated that during September 2001 he was appointed, as Deputy Director of Mines Safety and Inspector of Mines at Digboi Sub-Division under Director General of Mines Safety and that he had been authorised by the Chief Inspector of Mines as an Inspector of Mines within the area under Digboi Sub-Region to institute any proceeding arising under Mines Act, 1952. 14. Mr. 14. Mr. Bhattacharyya stated that the Notification dated 21.11.1990 (Exhibit-1) as placed by prosecution shows that the complainant Narain Singh was appointed to the post of Deputy Director of Mines Safety in the Directorate General of Mines Safety, Dhanbad in a temporary capacity with effect from 10.7.1990 (forenoon) until further order only and vide Memo dated 6.12.1990, the Director of Mines Safety (SD) forwarded the copy of the said Notification dated 21.11.1990 to complainant Narain Singh who was serving as Deputy Director of Mines Safety at Northern Zone, Ajmer for his information. Mr. Bhattacharyya further stated that the Notification dated 30.1.1990 (Exhibit-2) as placed by the prosecution shows that the Chief Inspector of Mines and Director General of Mines Safety authorised all the officers of the said Directorate, who are sub­ordinate to the Chief Inspector of Mines under the sub-section (1) of section 5 of the Mines Act, 1952 to institute prosecutions for any offence under the said Act against the owner, agent or manager of the mine situated within their respective inspection jurisdiction as declared under sub-section (3) of section 6 of the said Act. 15. Mr. Bhattacharyya, therefore, submitted that as the complainant Narain Singh (PW.1) failed to exhibit any notification of the Chief Inspector of Mines posting him as the Deputy Director of Mines Safety, Digboi Sub-Region, Digboi and appointing him as the Inspector of Mines for the said region under the Director General of Mines Safety and any declaration of the Chief Inspector of Mines to the extent that he being appointed as the Inspector of Mines for the Digboi Sub-Region, Digboi have jurisdiction over the local area or areas of 'Naharkatiya Oil Mines' and/or Digboi Sub-Region, Digboi to exercise his respective powers to institute prosecutions for any offence under the Mines Act, 1952 against the present accused petitioner, therefore, the instant complaint proceeding initiated at the instance of complainant Narain Singh, PW1 being without any authority of law under the Mines Act, 1952 and as such the impugned judgment and order of conviction dated 20.4.2006 passed by learned Sessions Judge, Tmsukia being bad in law, should be set aside and quashed. On being asked by the court, Mr. On being asked by the court, Mr. Kayal, learned Assistant SGI, appearing for the sole opposite party, Union of India submitted that there is nothing in the record to show that the Chief Inspector of Mines under the provisions of sub-section (3) of section 6 of the Mines Act, 1952 declared the jurisdiction of Deputy Director of Mines Safety, Digboi Sub-Region, Digboi and the Inspector of Mines, Digboi Sub-Region, Digboi over the local area or areas of said 'Naharkatiya Oil Mines'. Mr. Kayal, learned counsel for the Opposite Party also submitted that posting of said Narain Singh (PW1) as the Deputy Director of Mines Safety, Digboi Sub-Region, Digboi in September 2001 and as well as his appointment as the Inspector of Mines for the said Digboi Sub-Region, Digboi are not available on records. 16. Mr. Bhattacharyya submitted that the learned Chief Judicial Magistrate, Tinsukia, on 5.9.2002 took cognizance of the offences, issued process against the petitioner and three others accused persons of the Complaint dated 13.3.2002 lodged by the Complainant Narain Singh (PW.1) wherein the present petitioner had been made accused No. 3 and the allegation against him is that in contravention of the provisions of regulations 20, 37(1) and 37(2) read with regulation 98 of the 'Oil Mines Regulations 1984', he failed to ensure that the crane was checked prior to and during its use to ensure that it was safe and the crane was not loaded in excess of its recommended safe working load, thus, negligently committed to ensure the safety of persons employed therein and that said contraventions constitute offences which are punishable under section 73 of the Mines Act, 1952 and that contraventions resulted in loss of life of one person, namely, Tilak Hazarika and one person Sangram Phukan was seriously injured and as such the petitioner is liable for punishment under section 72C(1)(a) and 72C(1)(b) of the Mines Act, 1952. Mr. Bhattacharyya, learned counsel for the petitioner submitted that a person can be tried for ah offence under a Section of law, if the said accused contravenes any provisions of the Act and violates any regulation or bye-laws or any order made there-under and in the present case it is alleged that the accused petitioner violated the provisions of the Mines Act, 1952 and the provisions of Oil Mines Regulation, 1984. Mr. Mr. Bhattacharyya categorically stated that in the present case, while explaining the particulars of the offences under the aforesaid sections of law of the Mines Act, 1952, learned trial court did not indicate as to what are the contraventions that were committed by the accused persons for which they are liable to be prosecuted under the aforesaid sections of law and as such learned counsel for the petitioner submitted that the impugned judgment and order of conviction dated 20.4.2006 being bad in law is liable to be set aside and quashed. 17. Mr. Bhattacharyya, learned senior counsel for the petitioner also submitted that the said complainant (PW1) in the sub-para to paragraph 2.2 of his Inquiry Report dated 26.11.2001 (Exhibit-8), under the heading 'Background Information' specifically stated that "to cater the needs of transport, handling and placement of various equipment/materials, etc., at various field locations of the mine, a separate installation (transport field yard and other related areas in transport department) was functioning and N.R. Deka, Deputy Chief Engineer Transport (field) (the petitioner herein) was appointed as Installation Manager for the above with effect from 5.11.1998 and he was in turn assisted by transport engineers and junior engineers”. Mr. Bhattacharyya submits that the said enquiry report clearly discloses that the petitioner herein was appointed as Installation Manager only for the purpose of transportation, handling and placement of equipment and materials at various field locations only and for the same he was assisted by transport engineers and junior engineer. Moreover, according to Mr. Bhattacharyya, learned senior counsel for the petitioner there is nothing against the petitioner in the evidence adduced by the prosecution witnesses and the petitioner cannot be made liable/responsible for the accident dated 12.9.2001 which intern became fatal accident on 15.9.2001 and as such he cannot be convicted for the offence under section 72C(1)(a) of the Mines Act, 1952 for violation of the regulation 20(4)(a) and 20(5) of the Oil Mines Regulations, 1984; and as such the impugned judgment and order of conviction dated 20.4.2006 should be set aside and quashed. 18. Mr. Kayal, learned Addl. 18. Mr. Kayal, learned Addl. SGI, appearing for the sole respondent Union of India represented by the Deputy Director of Mines Safety, Digboi Sub-Region, Digboi, submitted that on the basis of the evidence of the prosecution witnesses and the documents exhibited by the prosecution, the learned trial court below has rightly recorded the judgment and order of conviction dated 26.7.2005 against the petitioner which was upheld by the impugned judgment and order dated 20.4.2006, modifying the order of sentence of payment of fine of Rs. 5,000 only. 19. Considered the submissions advanced by the learned counsels appearing for the parties and perused the evidence on record, apart from the judgments of conviction recorded by both, the trial court as well as the appellate court. 20. It is seen from the records that PW-1, Narain Singh, the complainant, in his deposition stated that during September 2001 he was posted as Deputy Director Mines Safety and Inspector of Mines at Digboi Sub-Division under Director General of Mines Safety, Naharkatiya Oil Mine of M/s. Oil India Ltd. and several other oil fields of Digboi Sub-Division falls under his jurisdiction of Director of Mines safety, he was appointed as Inspector of Mines vide Gazette Notification (Exhibit-2) and that he was authorised by the Chief Inspector of Mines as an Inspector of Mines within the area under Digboi Sub-Region to institute any proceeding arising under Mines Act, 1952. He as an Inspector of Mines conducted the inquiry with regard to the incident involved in the case and submitted inquiry report vide Exhibit-8 and the statement of witnesses, namely, Nabin Talukdar, Sidheswar Buragohain, Dhanya Singh, Prabhat Gohain, Apurba Arandhara, P.K. Shome, B.N. Tiwari, N.R. Deka, the petitioner herein, D.K. Banik and P.S. Goswami were recorded vide Ext. 8(2) to (11). The said PW1, Complainant in his evidence stated that on his inquiry he found that the present petitioner failed to ensure safety measures, namely, checking of the crane prior to and during its use, to ensure that it was safe and that the crane was loaded in excess of its recommended safe working loads. He further stated that during inquiry it was revealed that boom of the crane collapsed due to overloading of the crane beyond its capacity as it was used to pull a mud pump which resulted crashing of the boom and the crane thereby causing injury on the persons beneath the boom. He further stated that during inquiry it was revealed that boom of the crane collapsed due to overloading of the crane beyond its capacity as it was used to pull a mud pump which resulted crashing of the boom and the crane thereby causing injury on the persons beneath the boom. The said witness opined that the accident could not have been averted had the crane been checked prior to and during its use to ensure that it was safe and the crane was not loaded in excess of its recommended safe working load. In his cross-examination said PW1, Narain Singh stated that he does not have any personal knowledge about the incident as it is not seen at the time of occurrence; that in the drilling site the mud pump was shifted by two cranes from the opposite direction; that he does not know how much distance the pump was lifted initially by the cranes to the drilling site prior to its placing on the drilling foundation and that one side of the pump was put at the proper place prior to the occurrence of the incident and the other side of the pump was to be shifted for a distance of about 4 inches. He also stated that the capacity of both the cranes are 30 tons and 18 tons, respectively and that total capacity of both the cranes may be sufficient or may not be sufficient for lifting the pump; that it was not within his knowledge as to how the cranes were operated in the process of lifting the weight as he was not present at the time of operation of the cranes and that he does not have operational knowledge of a crane and as such he cannot say in which direction cabin of a crane is to be moved and that site engineer is the best to explain the position. Pie also stated that he cannot say whether it was a fault on the part of the crane operator Nabin Talukdar (PW3) who towed the weight at 45 degree angle away from the cabin and that it may probably or may not if two cranes operated simultaneously in lifting the weight, the accident would not have taken place and that he cannot say the other cause of accident. He also stated that there were six mines besides the mine at Naharkatiya under the Oil India Ltd. Duliajan and he cannot say whether those were operating or not at the relevant time and cannot say how many square kilometres are covered under Naharkatiya Oil Mines, he cannot say how many wells are there under the Naharkatiya Mines; but, clarified that there are more than 50 wells under Naharkatiya Oil Mines. Said PW1, Narain Singh, in his cross-examination also clarified that he do not have any personal knowledge whether the crane involved in the case was checked prior to its operation as he was not present, he did not seize any records of servicing of the cranes, as those were not available with the concerned engineer, he found members of the cranes missing prior to his visit to the place of occurrence and that accident took place prior to his said visit. The said PW1 in his cross-examination further stated that one Mr. P.K. Shome, was the Departmental Safety Officer appointed for the mine and duty of the safety officer is that if he detects any unsafe condition in the mine it is his duty to report immediately to the superior and the concerned authority and that he did not remember about any evidence that the said safety officer Mr. Shome reported to any authority of the Oil India Ltd. regarding unsafe condition of the crane prior to the incident and his enquiry report (Exhibit-8) do not reveal anything about any information provided to the Oil India Ltd. by any of the workmen or officials of the mine regarding report submitted to them as to the unsafe condition of the crane prior to the occurrence and that he did not remember whether crane operator Nabin Talukdar stated before him that he tested the crane prior to his operation and found the crane could .lift the weight and that he did not submit anything in his report regarding role of the safety officer, P.K. Shome. 21. PW2 Dhanya Singh in his deposition before the learned trial court submitted that he is a crane driver and that in addition to his other works he also worked in the crane for shifting and placing the second rig pump and his crane number was OIL 6038. The other crane number OIL 6035 was operated by Sri R.N. Saikia. Said Mr. The other crane number OIL 6035 was operated by Sri R.N. Saikia. Said Mr. Singh submitted that when his said crane became out of order, he accordingly informed the Supervisor S. Buragohain (accused No. 1) and said MR. Buragohain, giving necessary information, brought another crane No. 6039 which was operated by Nabin Talukdar (PW3) and that the said crane initially tested whether the pump can be lifted or not and thereafter, the pump was taken to the foundation. Said PW2 also stated that when trying to install the pump correctly and while tracking it, the boom of the crane, operated by PW3 broke down due to which Tilak Hazarika and Sangram Phukan of the Mechanical Department were injured and they were shifted to the hospital and three days thereafter said Tilak Hazarika expired. PW2 stated that at that point of time, he was working at location 'DET' at Makum and as the boom of the crane collapsed he ran away from the place and save himself, otherwise he would have also been injured. He further stated that only after the boom of the crane collapsed, he saw that the members and the joints of the said crane were broken. In his cross-examination, PW2, Mr. Dhanya Singh stated that since 1992 he was working as a crane operator and he obtained training for the same. He stated that before lifting any weight, the crane is always tested and on the said date also the crane was tested. He also stated that at the time of occurrence, the number one pump was lifted by the help of two cranes as the portion of the pump lifted by crane No. 6035, operated by R.N. Saikia was placed properly, he stopped lifting his side of the pump and there was about four inches to be lifted by the other crane operated by Nabin Talukdar. According to said PW.2 at the time of occurrence, the other end of the pump should have been lifted by the other crane and then only Nabin Tahtkdar should have move the pump by lifting the same Nabin Talukdar should not have tracked the crane. Said PW2 also stated that had Mr. Nabin Talukdar placed the cabin properly, the accident would not have occurred and that he saw the member of the crane broke, after the occurrence of the incident only. Said PW2 also stated that had Mr. Nabin Talukdar placed the cabin properly, the accident would not have occurred and that he saw the member of the crane broke, after the occurrence of the incident only. In his cross-examination, said PW3 also stated that he operated the said crane four months prior to the incident and then-he did not find any defect in it. He clarified that before operating the crane, the crane operator always tests it and on such test if the operator finds that it does not have the capacity, he use to inform the Supervisor and that the same is a specific order of the department. PW2 also stated that on the date of the incident Nabin Talukdar, during his test found the crane, operated by him to be safe and thereafter he began the operation of the work and that if any weight cannot be carried by a crane, two cranes together are enough to lift the same. He also stated that two cranes were sufficient to lift the No. 1 pump (in the present case), but as the operation was not correctly clone the accident have occurred. 22. PW3 Nabin Talukdar, who was the crane operator of the ill fated crane, in his deposition stated that his senior allotted the works for the three cranes, out of which two had the capacity of lifting 50 tons and the other is of 18 tons. As the crane operated by Dhanya Singh PW.2 became inoperative, his senior Buragohain then asked him to bring his 18 tons crane and accordingly he informed the said accused S. Buragohain that his crane is of only 18 tons and then said Buragohain replied that there won't be any problem since there will be two cranes and the weight will be half. Said PW3 stated that a rig pump is about 26 tons and as the work was very essential, as per the direction of his senior, accused S. Buragohain, he went to the site and initially made a test whether both the cranes together can lift the pump or not and on being found that they can, the pump was lifted as per instruction of his senior, accused Buragohain. After some time, as the end of the rig pump, lifted by the 50 tons crane was complete and since it was not complete from his side, on instruction of his said senior, he moved the pump for about two inches from his side and when tried to move the pump, the boom of the crane collapsed and rig pump fell down. PW3 also stated that as the said boom came down and people under it ran here and there and during such running two of their co-workers bumped each other and they fell down and thereafter the boom of the crane fell on them, for which both of them were injured and one of them is Mr. Hazarika and the other one was not known to him. In cross-examination, PW3 Nabin Talukdar stated that he is a trained crane driver and on the date of the incident he had about 12 years experience. He also stated that if any item cannot be lifted by the crane then two cranes are used and whatever may be the weight of the article if both the cranes together can lift more weight then there its capacity it is considered as safe operation. New model cranes possess weight meters but the old one does not and as such only by testing the cranes they can lift the item and then only they can start the operation. After testing the crane il was found that the crane can carry the weight and then only he started the operation otherwise he would not have. On getting the signal form said S. Buragohain tried many a times to lift the said weight and carried it from then backward and on finding it safe carried the weight. While carried the crane both the cranes were lifted the pump and placed accordingly, it is not because of the capacity of the crane but as the alignment of the crane was not correct from his side, it appear that there was about a inch left from placing the pump in its place. He was not aware what the other crane was doing. Had the other crane continued to lift the pump it would have been easier for him to move the pump. He was not aware what the other crane was doing. Had the other crane continued to lift the pump it would have been easier for him to move the pump. As instructed by his senior he was operating the crane and did not notice as he was lifting the weight and shifting the pump he did not notice any instruction given by Buragohain had his crane shifted to little on the right it would have been easier for him. While operating even if the supervisor senior gives any instruction it may not be followed if it is found to be dangerous. As he found everything in order he operated the crane. The crane that he operated was in order and it broke down only after the incident and he did not find any difficulty problem while carrying the rig pump. He was under believe that the crane operated by Saikia was lifting the pump and only later came to know that he (Saikia) had already suspend released the weight. PW3, Nabin Talukdar in his cross also stated that if Saikia (operator of other crane) had not release Ihc weight and had his (PW3) crane been moved just little on the fight side, the accident would not have occurred. 23. PW4 Sangram Phukan (one of the injured victim of the incident) in his deposition stated that on the date of the incident he was engaged in placing a pump in the well which weight was about 26 tons, for which two cranes were engaged in placing the pump in its proper place. When they were working near the pump, suddenly the boom of one of the crane broke down and the boom fell down from a height of 30 feet, which hit him on his head and he fell down instantly and became unconscious and retained his senses at Aditya Nursing Home at Dibrugarh and nine days thereafter he was admitted in a Nursing Home for 25 days and he cannot say what happened subsequent to the incident. He stated that co-workers, namely, Dhanya Singh (PW2), crane operator Talukdar (PW3) and one Borgohain were present at the time of operating the crane in the well site and he was not present at the time of making the inquiry as after the incident he was in the Nursing Home at Dibrugarh and he cannot say the reason for which the accident occurred. In his cross-examination, Mr. Phukan (PW4) stated that about two years prior to the incident, he was working with the crane operation and as per his knowledge is concerned, if the capacity of two cranes is more than the weight (to be lifted/carried), then it will be safer to lift the same. PW3 stated that he did not notice the position of the crane, placed by operator Nabin Talukdar and later he heard that crane operator Nabin Talukdar ought not have operated the crane without proceeding towards right and the other crane operator should not have suspended the weight, the cause for which the accident have occurred. He also stated that he only heard the said fact and that the crane operated by the other operator and not by Talukdar (PW3) kept the weight suspended before the accident and that he did not notice the movement of the crane at the relevant time as well as of the weight and that he did not see as to how the incident occurred, but received injury in the said accident. 24. The relevant sections of "the Mines Act, 1952" and the Regulations “the Oil Mines Regulations, 1984” related to this case reads as follows - The Mines Act, 1952 “2. Definitions. 24. The relevant sections of "the Mines Act, 1952" and the Regulations “the Oil Mines Regulations, 1984” related to this case reads as follows - The Mines Act, 1952 “2. Definitions. - 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; 2(d) "Chief Inspector" means the Chief Inspector of Mines appointed under this Act; 2(h) a person is paid to be "employed" in a mine who works as the manager or who works under appointment by the owner, agent or manager of the mine or with the knowledge of the manager, whether for wages or not - (i) in any mining operation (including the concomitant operations of handling and transport of minerals up to the point of dispatch and of gathering sand and transport thereof to the mine); (ii) in operations or services relating to the development of the mine including construction of plan therein but excluding construction of buildings, roads, wells and any building work not directly connected with any existing or future mining operations; (iii) in operating, servicing, maintaining or repairing any part of any machinery used in or about the mine; (iv) in operations, within the premises of the mine, of loading for dispatch of minerals; (v) in any office of the mine; (vi) in any welfare, health, sanitary or conservancy services required to; be provided under this Act, or watch and ward, within the premises of the mine excluding residential area; or (vii) in any kind of work whatsoever which is preparatory or incidental to, or connected with, mining operations; 2(i) "Inspector" means an Inspector of Mines appointed under this Act, and includes a district magistrate when exercising any power or performing any duty of an Inspector which he is empowered by this Act to exercise or perform; 2(1) "owner", when used in relation to a mine, means any person who is the immediate proprietor or lessee or. occupier of the mine or of any part thereof and in the case of a mine the business whereof is being carried on by a liquidator or receiver, such liquidator or receiver but does not include a person who merely receives a royalty, rent or fine from the mine, or is merely the proprietor of the mine, subject to any lease, grant or licence for the working thereof, or is merely the owner of the soil and not interested in the minerals of the mine; but any contractor or sub-lessee for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability; 5. Chief Inspector and Inspectors. - (1) The Central Government may, by notification in the Official Gazette, appoint such a person as possesses the prescribed qualification to be Chief Inspector of Mines for all the territories to which this Act extends and such persons as possess the prescribed qualifications to be Inspectors of Mines subordinate to the Chief Inspector. (2) No person shall be appointed to be Chief Inspector or an Inspector or having been appointed shall continue to hold such office, who is of becomes directly or indirectly interested in any mine or mining rights in India. (3) The District Magistrate may exercise the powers and perform the duties of an Inspector subject to the general or special orders of the Central Government: Provided that nothing in this sub-section shall be deemed to empower a District Magistrate to exercise any of the powers conferred by section 22 or section 22A or section 61. (4) The Chief Inspector and all Inspectors shall be deemed to be public servants within the meaning of the Indian Penal Code, 1860 (45 of 1860). 6. Functions of Inspectors, - (1) The Chief Inspector may, with the approval of the Central Government and subject to such restrictions or conditions as he may think fit to impose, by order in writing, authorise any Inspector named or any class of Inspectors specified in the order to exercise such of the powers of the Chief Inspector under this Act (other than those relating to appeals) as he may specify. (2) The Chief Inspector may, by order in writing, prohibit or restrict the exercise by any Inspector named or any class of Inspectors specified in the order of any power conferred on Inspectors under this Act. (3) Subject to the other provisions contained in this section, the Chief Inspector shall declare the local area or areas within which or the group or class of mines with respect to which Inspectors shall exercise their respective powers. 7. Powers of Inspectors of Mines. - (1) The Chief Inspector and any Inspector may- (a) make such examination and inquiry as he thinks fit in order to ascertain whether the provisions of this Act and of the regulations, rules and bye-laws and of any orders made there-under are observed in the case of any mine; (b) with such assistants, if any, as he thinks fit, enter, inspect and examine any mine or any part thereof at any time by day or night: Provided that the power conferred by this clause shall not be exercised in such a manner as unreasonably to impede or obstruct the working of the mine; (c) examine into, and make inquiry respecting, the state and condition of any mine or any part thereof, the ventilation of the mine, the sufficiency of the bye-laws for the time being in force relating to the mine, and all matters and things connected with or relating to the health, safety and welfare of the persons employed in the mine, and take whether on the precincts of the mine or elsewhere, statements of any person which he may consider necessary for carrying out the purposes of this Act; (d) exercise such other powers as may be prescribed by regulations made by the Central Government in this behalf: Provided that no person shall be compelled under this sub-section to answer any question or make any statement tending to incriminate himself. (2) The Chief Inspector and any Inspector may, if he has reason to believe/as a result of any inspection, examination or inquiry under this section, that an offence under this Act has been or is being committed, search any place and take possession of any material or any plan, section, register or other record appertaining to the mine, and the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be applicable, apply to any search or seizure under this Act as they apply to any search or seizure made under the authority of a warrant issued under section 94 of that Code. 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 there-under other than an order made under sub-section (1 A) or sub-section (2) or sub-section (3) of section 22 or under sub-section (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 there-under, he shall be punishable with double the punishment provided by sub-section (1). (2) Where a person having been convicted under this section is again convicted there-under, 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. 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 authorised in this behalf by general or special order in writing by the Chief Inspector: Provided that the Chief Inspector or the District Magistrate or the Inspector as so authorised shall, before instituting such prosecution, satisfy himself that the owner, agent or manager had failed to exercise all due diligence to prevent the commission of such offence: Provided further that in respect of an offence committed in the course of the technical direction and management of a mine, the District Magistrate shall not institute any prosecution against an owner, agent or manager without the previous approval of the Chief Inspector." Oil Mines Regulations, 1984 “2. Definitions. - '2(41) "Installation "means any fixed installation or part of a fixed installation which is maintained with the mine or is to be established there in connection with exploitation of petroleum or with exploration with a view to such exploitation; 2(42) "Installation Manager" means the person appointed in writing by the owner or agent of the mine to be in-charge of and responsible for all operation and activities on or in connection with the installation; 2(51) "Mud-Pump" means a pump used to circulate mud down the drill pipe and up the annulus under normal operation; 2(63) "rigging-up" means an act of assembling a drilling or work-over rig and auxiliary equipment prior to commencement of drilling or work-over operation; 13. Appointment of Installation Managers. Appointment of Installation Managers. - (1) At every mine one or more installation, managers shall be appointed to hold charge of the different installations of the mine; (2) An Installation Manager may hold charge of more than one installation. 20. "Duties of Installation Managers". - (1) The installation manager shall have charge and control of such installations and shall carry out such duties, as may be assigned to him by the Manager. (2) He shall see that a notice of his appointment is posted at a place in the installation in such a position that it can be easily and conveniently read. (3) He shall see that in the installation assigned to him, all work is carried out in accordance with the provisions of the Act and the regulations and orders made there-under. (4)(a) He shall visit and examine the installations under his charge on every working day to see that safety in every respect is ensured. (b) He shall maintain a detailed record, the results of each of his inspections and also the action taken by him to rectify the defects noticed, if any. (5) He shall see, when any drilling rig, work-over rig and associated equipment or production equipment or pipeline is shifted or newly installed, that it is given a trial run before it is put into use and shall be present during every such trial run. (6) He shall see that all persons employed at the installation are thoroughly instructed and familiar with the provisions of the standing orders made under these regulations, prevention of blow out and fir. (7) He shall see that the provisions of the Act and the Regulations or Orders made thereunder relating to the installation, maintenance, operation or examination of machinery and equipment are properly carried out by himself or by competent persons or work persons, as the case may be, appointed for the purpose. 8(a) When, during construction of an installation or any operation thereat, there is an emergency or apprehended emergency endangering the life or safety of any person or the stability and safety of the installation, he shall himself take or caused to be taken such measures as are necessary or expedient to avoid the emergency. (b) No requirement in these regulations shall be taken as prohibiting or restricting the taking of such measures. 37. Rigging equipment for material handling. (b) No requirement in these regulations shall be taken as prohibiting or restricting the taking of such measures. 37. Rigging equipment for material handling. - (1) Rigging equipment including cranes for material handling shall be checked prior to arid during its use to ensure that it is safe. (2) Rigging equipment shall not be loaded in excess of its recommended safe working load. (3) While operating cranes in the vicinity of over head electric transmission line adequate precaution shall be taken against accidental contact with the electric transmission line unless the same kept de-energized during movement of the same. 98. General Safety, - No person shall negligently or wilfully do anything likely to endanger life or limb in the mine or negligently or wilfully omit to do anything necessary for the safety of the mine of the person employed therein. 25. It is seen from the above that there is nothing on record with regard to complainant Narain Singh's (PW1) posting as the Deputy Director of Mines Safety, Digboi Sub-Region, Digboi in September 2001 as deposed by him nor there is anything on record with regard to his appointment as the Inspector of Mines Digboi Sub-Region, Digboi issued by the Chief Inspector of Mines under section 5(1) of the Mines Act, 1952. There is also no record to show that the Chief Inspector of Mines under section 6(3) of the Mines Act, 1952 declared that the Inspector of Mines Digboi Sub-Region, Digboi had the jurisdiction to exercise his respective powers under the said 1952 Act over the local area or areas of the 'Naharkatiya Oil Mines' of M/s. Oil India Ltd., Duliajan. Therefore, it is clear that said Narain Singh (PW1) without any authority under the Chief Inspector of Mines under the Mines Act, 1952 acted of his own as Deputy Director of Mines Safety and Inspector of Mines for Digboi Sub-Region, Digboi and without any authority issued Notice for Inquiry of the accident, made inquiry, submitted Inquiry Report, lodged the complaint and initiated the prosecution against the petitioner, for the offence under the Mines Act, 1952. The Notification dated 21.11.1990 (Exhibit-1) and the Gazette of India Notification dated 30.1.1990 (Exhibit-2) does not reflect that the Chief Inspector Mines posted and/or appointed said Narain Singh, Deputy Inspector of Mines Safety as the Inspector of Mines for Digboi Sub-Region, Digboi and that the Chief Inspector of Mines declared the jurisdiction of said Inspector of Mines to exercise his respective powers under the Mines Act, 1952 over the local area or areas of said 'Naharkatiya Oil Mines'. Therefore, the said action of the complainant Narain Singh (PW1) in initiating the prosecution against the petitioner, for the offence tinder the Mines Act, 1952 is in violation of the statutory requirement of the provisions of the Mines Act, 1952 and as such the said proceeding initiated against the petitioner under the said 1952 Act being without any authority of law is illegal. 26. Moreover from the deposition of said Narain Singh, PW1 it is seen that he himself is not sure as to whether two cranes, one of which had the lifting capacity of 30 tons and the other had the lifting capacity of 18 tons are sufficient to lift the pump weighing about 26 tons. He did not have personal knowledge whether the crane involved in the accident was checked prior to its operation or not as he was not present and he is not sure whether the accident could have been averted had both the cranes were used or not and cannot say other cause of the accident. From the evidences of the other three prosecution witnesses, namely, PW2 Dhanya Singh, PW 3 Nabin Talukdar and PW4 Sangram Phukan it is seen that the ill fated crane No. 6039 was checked and tested on the date of the incident prior to its use in the operation. It is seen that the prosecution witnesses did not lead any evidence against the present petitioner with regard to his failure in his duty as Installation Manager. It is also seen that the prosecution did not examine the other crane operator R.N. Saikia, who released the weight of the rig-pump just before the accident occurred nor he was examined during the inquiry proceeding. 27. There is no evidence from the prosecution side that the accused petitioner did not visit and examine the installations concerned under his charge on every working day and he looked into the safety measures properly, prior to the incident. 27. There is no evidence from the prosecution side that the accused petitioner did not visit and examine the installations concerned under his charge on every working day and he looked into the safety measures properly, prior to the incident. Again from section 313, Cr.P.C. statement of the accused petitioner recorded on 18.11.2004 by the learned trial court, it can be seen that the accused petitioner had the charge of to see the safety measures of twelve drilling installations of 'Naharkatiya Oil Mines' and as those twelve installation were at different distances, it was not possible for him to be present in every installation and to supervise the installations, there are Junior Engineers and efficient officers and workmen are available in the installations. It is also seen that the accident occurred around 10:10 Hours on 12.9.2001 and the work was scheduled for 06:00 a.m. to 02:00 p.m. on the day of the incident. It is clear from the Inquiry Report dated 26.11.2001 (Exhibit-8) that to cater the needs of transport, handling and placement of various equipment/materials, etc., at various field locations of the mine, a separate installation (transport field yard and other related areas in transport department) was functioning and the petitioner was appointed as Installation Manager for the said purpose with effect from 5.11.1998 and he was in turn assisted by transport engineers and junior engineers. 28. For the reasons aforesaid, the impugned judgment and order of conviction and the order of sentence dated 20.4.2006 passed by learned Sessions Judge, Tinsukia in Criminal Appeal No. 41(3) of 2005 arising out of Complaint Case being CR 38C of 2002 of the Chief Judicial Magistrate, Tinsukia is hereby set aside and quashed, the petitioner is discharged from the charge of section 72C(1)(a) of the Mines Act, 1952 for violation of the regulations 20(4)(a) and 20(5) of the Oil Mines Regulations, 1984 and the sentence for payment of fine of Rs. 5,000 is accordingly set aside. The sureties if any are also discharged from their obligation. 29. With the aforesaid observations this revision petition is allowed and disposed of accordingly. 30. Registry shall send down the records of the courts below forthwith.