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2015 DIGILAW 918 (JHR)

Mithilesh 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 petitioners and learned counsel for the Opposite Parties. 2. This application has been filed for quashing the entire criminal proceeding against the petitioners in Ramgarh P.S Case No.240 of 1997 corresponding to G.R No.1704 of 1997, as also the order taking cognizance dated 29.1.1999 passed therein, by the learned Chief Judicial Magistrate, Hazaribagh, whereby, cognizance has been taken against the petitioners for the offence under Sections 287, 288, 304-A, 337 of the Indian Penal Code. 3. The facts of this case lie in a short compass. The petitioners herein are the Chief General Manager, Agent, Manager and Under Manager of the Central Coalfields Ltd. On 18.10.1997, a fatal accident took place at Sirka underground colliery of M/s Central Coalfields Ltd, in which, while the group of loaders were loading the coal in the said mines, suddenly, a mass of roof stone fell on the loaders, in which, one loader survived receiving injuries, while the other five loaders were killed at the spot. 4. The F.I.R was lodged on the basis of fardbeyan of one workman who had entered into the mines along-with the deceased, but he could escape the accident. On the basis of the said fardbeyan, Ramgarh P.S case No.240 of 1997, corresponding to G.R No.1704 of 1997 was instituted and investigation was taken up. It appears that after investigation, the police submitted charge-sheet and the cognizance was also taken against the petitioners. Aggrieved thereby, the petitioners have moved this Court through the present application, challenging the order taking cognizance, as also the entire criminal proceeding against them. 5. Learned counsel for the petitioners has submitted that the order taking cognizance against the petitioners and the continuance of criminal proceeding, are absolutely illegal and in teeth of Section 75 of the Mines Act. It is submitted by the learned counsel for the petitioners 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, 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. It is submitted by the learned counsel for the petitioners that actually for the offence under Sections 72-A and 72-C (1) (a) (c) of the Mines Act, 1952, a prosecution has already been lodged by the competent authority against the petitioners, which is Criminal Case No.54 of 1998, for the same accident caused in the mines on 18.10.1997. 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 petitioners in Ramgarh P.S Case No.240 of 1997, corresponding to G.R No.1704 of 1997, including the order taking cognizance passed therein. 6. 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. Placing reliance on this decision, learned counsel submitted that there is no illegality in the continuation of the criminal case against the petitioners and this application is fit to be dismissed. 7. 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. 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." 8. 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. 9. 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; *** *** *** ." 10. 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. 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)(c) 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. 11. In view of the aforementioned discussions, I am of the considered view that no FIR could be lodged against the petitioners for the offences, as alleged against them, by the workman, who was not authorised to institute the prosecution under Section 75 of the Mines Act. The petitioners could be prosecuted and punished only in accordance with the Provisions of the Mines Act, and for the offences under the said Act, for which the prosecution has already been launched against the petitioners in Criminal Case No.54 of 1998. Accordingly, the FIR in the present form could not be instituted against the petitioners for the offences alleged and the criminal proceeding against the petitioners in the present form is absolutely vitiated and cannot be continued. 12. Accordingly, the impugned order dated 29.1.1999 passed by the learned Chief Judicial Magistrate, Hazaribag, in Ramgarh P.S Case No. 240 of 1997, corresponding to G.R No.1704 of 1997, as also the entire criminal proceeding against the petitioners in the said case, are hereby, quashed. Consequently, this application stands allowed. Applications allowed.