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2015 DIGILAW 917 (JHR)

Arvind Kumar Singh v. State of Jharkhand

2015-08-04

H.C.MISHRA

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JUDGMENT : H.C. Mishra, J. Heard learned counsel for the petitioner and learned counsel for the opposite parties. 2. This application has been filed for quashing the order dated 10.4.2000 passed by the learned Addl. Chief Judicial Magistrate, Bermo at Tenughat, in Bermo P.S Case No.142 of 1998 corresponding to G.R. No.949 of 1998, as also the entire criminal proceeding against the petitioner in the said case. 3. The facts of this case lie in a short compass. The petitioner was working as a Manager of Amlo Project of the Central Coalfields Ltd., Dhori Colliery, where on 10.12.1998, an accident took place, in which, one lady died. The FIR was lodged by the husband of the deceased, stating that the informant and his wife were at the Quarter No. MQ-524, situated near the coal mines, where there was an explosion, in which, a big piece of stone suddenly hit the wife of the informant, causing her death at the spot. The said explosion was caused due to the blasting in the mines and accordingly, on the basis of the fardbeyan of the husband of the deceased, the FIR was lodged for the offence under Sections 287, 304-A & 338 of the Indian Penal Code, and investigation was taken up. Subsequently, charge-sheet was also submitted by the police after investigation, on the basis of which, the cognizance was taken against the petitioner, being the Manager of coal mines. 4. Learned counsel for the petitioner has submitted that the order taking cognizance against the petitioner and the continuance of criminal proceeding, are absolutely illegal and in teeth of Section 75 of the Mines Act, 1952. It is submitted by the learned counsel for the petitioner that the offence is clearly made out under Section 72-C (1) (a) and Section 73 of the Mines Act, for which, Section 75 of the Mines Act clearly provides that no prosecution can be instituted against any Owner, Agent or Manager of the Mines 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. It is further submitted by the learned counsel for the petitioner that actually for the offence under Sections 73 and 72-C (1) (a) of the Mines Act, a prosecution has already been lodged by the competent authority against the petitioner, which is Criminal Case No.9 of 1999, for the same accident caused in the mines on 10.12.1998. Learned counsel also submitted that in view of Section 26 of General Clauses Act, both the cases cannot be allowed to continue. Learned counsel accordingly, submitted that it is a fit case for exercise of inherent powers under Section 482 of the Cr.P.C., for quashing the entire criminal proceeding against the petitioner in Bermo P.S Case No.142 of 1998, corresponding to G.R No.949 of 1998, including the order taking cognizance passed therein. 5. Learned counsel for the Opposite Parties, on the other hand, has opposed the prayer and has submitted that on the basis of allegation against the petitioners, two distinct offences are made out, one under the Mines Act and one under the General Provision of the Indian Penal Code. Learned counsel further submitted that there is no bar in continuation of both the proceedings and in this connection, learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court of India in State (NCT of Delhi) Vs. Sanjay, reported in (2014) 9 SCC 772 . 6. It is further submitted by the learned counsel for the opposite parties that in the present case, the lady had died not in the mines, rather she had died at her quarter, which was not the part of the mines and accordingly, the Special Provisions of the Mines Act are not applicable to the facts of this case, from which it is apparent that though the blasting was made in the mines, but the lady was hit at her quarter which was situated adjacent to the mines. 7. The word 'Mine' is defined under Section 2(j) of the Mines Act, from the perusal of which, it appears that it does not include the quarter of the staff situated in the mines, but an extended definition of 'Mine' has been provided under the Coal Mines Nationalization Act, relevant portion of which reads as follows :- “2. 7. The word 'Mine' is defined under Section 2(j) of the Mines Act, from the perusal of which, it appears that it does not include the quarter of the staff situated in the mines, but an extended definition of 'Mine' has been provided under the Coal Mines Nationalization Act, relevant portion of which reads as follows :- “2. (h) ‘mine’ means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, and includes— (xi) all lands and buildings other than those referred to in sub-clause (x), wherever situated, if solely used for the location of the management, sale or liaison offices, or for the residence of officers and staff, of the mine;” 8. The word “mine” as defined in the Coal Mines Nationalization Act, clearly shows that it includes the quarter of the staff as well and in that view of the matter, the submission of the learned counsel for the opposite parties that the lady was killed outside the mines, cannot be accepted. 9. In Sanjay's case (supra), the Hon'ble Apex Court was considering in the question whether the provisions contained in Sections 21, 22 and other Sections of the Mines and Minerals (Development and Regulation) Act, 1957 operate as a bar against the prosecution of a person, who has been charged with the allegation, which constitute the offence under Sections 379 /114 and the other provisions of the Indian Penal Code. The said case related to illegal mining of sand from the Yamuna basin, for which, the FIR was lodged by the police. Taking into consideration conflicting decisions of different High Courts on the point, the Apex Court laid down the law as follows :- "72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State’s possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the Government land, the police can register a case, investigate the same and submit a final report under Section 173 Cr.P.C before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure." 10. A plain reading of the law laid down by the Apex Court in Sanjay's case (supra), clearly shows that it has no application in the present case, as the facts of this case are absolutely different. In the present case, the mining operation was lawfully being conducted by the Central Coalfields Ltd., during which, an accident had taken place in the coal mines. 11. Section 75 of the Mines Act 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; *** *** *** ." 12. In the present case, even if the allegation in the F.I.R is taken in its entirety, the offence is clearly made out under Section 72-C (1) (a) and 73 of the Mines Act, and in that view of the matter, the petitioners are liable to be prosecuted and punished only under the Provisions of the Mines Act, in accordance with Section 75 of the Mines Act, which clearly excludes the institution of the police case against the petitioners by a person, not duly authorized under the law. 13. 13. In view of the aforementioned discussions, I am of the considered view that no FIR could be lodged against the petitioner for the offence, as alleged against him, by a person not authorised under Section 75 of the Mines Act, and the petitioner can be prosecuted and punished only in accordance with the Provisions of the Mines Act, for the offence under the said Act, which has already been instituted against the petitioner in Criminal Case No.9 of 1999. Accordingly, the criminal proceeding in the present police case is absolutely vitiated and cannot be continued against the petitioner. 14. Accordingly, the impugned order dated 10.4.2000 passed by the learned Addl. Chief Judicial Magistrate, Bermo at Tenughat, in Bermo P.S Case No. 142 of 1998 corresponding to G.R. No.949 of 1998, as also the entire criminal proceeding against the petitioner in the said case, are hereby, quashed. Consequently, this application stands allowed. Applications allowed.