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2015 DIGILAW 946 (JHR)

B. Kumar @ Brijendra Kumar v. State of Jharkhand

2015-08-11

RAVI NATH VERMA

body2015
ORDER : The petitioner of this revision application calls in question the legality of the order dated 11.10.2012 passed by learned Judicial Magistrate, 1st Class, Dhanbad in C.M.A. Case No.614 of 2000 whereby and whereunder a petition filed by the petitioner under Section 239 of the Code of Criminal Procedure (in short ‘the Code’) for his discharge, has been rejected. 2. The facts, giving rise to present revision, lies in a narrow compass. The prosecution case which is based on a written complaint filed by the complainant-opposite party no.2 on 01.12.2000 relates to an accident which had taken place on 27.09.1995 at 1.30 a.m. at below ground workings of X Special Seam worked though No.6 pit of Union Angarpathra unit of Gaslitand Colliery, Katras area for which a court of enquiry was constituted under Section 24 of the Mines Act, 1952 (in short ‘the Act’) vide notification dated 17.10.1995 by the Ministry of Labour, Government of India. At the relevant period during which the said accident took place, one P.N. Mathur was Director and nominated owner of the said colliery under Section 76 of the Act, Ramesh Khanna, P.C. Sood and R.D. Jain were posted as Chief General Manager, Additional General Manager and Area Safety Officer of Katras area and Deemed Agents under Section 2(c) of the said Act. Similarly, B. Kumar (the petitioner) and N. Singh were posted as ‘Agent’ and ‘Manager’ respectively, S.K. Ghosh, P.N. Verma and S.K. Dutta were posted as Assistant Manager, Safety Officer and Colliery Engineer respectively and all the accused persons were acting in their respective capacities and they were bound to conduct all mining operations in accordance with provisions of the Mines Act, Rules, Regulations and Orders made thereunder. On receiving information about the accident and that persons are trapped in the below ground workings of Gaslitand colliery due to failure of winders on 27.09.1995 an enquiry was made by the then opposite party no.2 to find out the cause and circumstances leading to the said accident. On receiving information about the accident and that persons are trapped in the below ground workings of Gaslitand colliery due to failure of winders on 27.09.1995 an enquiry was made by the then opposite party no.2 to find out the cause and circumstances leading to the said accident. The court of enquiry was also appointed and the findings of the court of enquiry were published by the Government of India, Ministry of Labour, New Delhi vide Gazette Notification dated 15.12.1999 and from the findings of the enquiry it appears that while 64 persons were engaged in belowground workings when unprecedented heavy rains within a short span of time caused rapid rise in water level of adjoining river on surface which exceeded the prefixed withdrawal level requiring withdrawal of persons from below ground workings but the same went unnoticed and attempts to raise the persons which started much later but with little success. The flood water entered into an adjoining quarry, then breached a retaining wall and the water soon filled up the entire below ground workings, trapping all the 64 work persons, who could not be raised up to the surface and later five dead bodies were recovered. The court of enquiry found several contraventions which caused the said accident including contravention of Regulation 126, 66(2), 76(a) and 36(1)(b) of the Coal Mines Regulations, 1957 and found the petitioner and other accused persons failed to ensure to maintain constant vigilance, to check vulnerable points and effectiveness of safety measures. 3. It appears from the record that the learned Chief Judicial Magistrate, Dhanbad by order dated 07.12.2000 took cognizance of the offence under Section 72 (c)(1)(a) and 73 of the Act whereafter at the instance of present petitioner, a petition for his discharge was filed. The learned Judicial Magistrate after hearing the parties and analyzing the materials on record and evidence rejected the prayer for discharge of the petitioner by order dated 11.10.2012 holding that the court of enquiry found this petitioner responsible for the said accident alongwith other accused persons and also held that the cognizance of the offence under Section 79(iii) was taken under the Act within stipulated period of one year. Hence, this revision. 4. Mr. Hence, this revision. 4. Mr. Anoop Kumar Mehta, learned counsel appearing for the petitioner submitted that even if the report of the court of enquiry is accepted in its entirety, still on the basis of the findings recorded by the said commission no offence against this petitioner is made out as the petitioner was never posted as an ‘Agent’ as defined in Section 2(1)(c) of the Act, 1952 and also under the provisions contained in Regulation 8A of the Coal Mines Regulation, 1957 and that even in the letter issued by the owner appointed under the Act the name of the petitioner does not figure and without considering this fact, the court took cognizance of the offence under Section 73 and 72(c)(1)(a) of the said Act, 1952 against the petitioner. Learned counsel further submitted that the cognizance itself was barred under the provisions of Section 79 (iii) of the Act, 1952 as the same was taken beyond the prescribed period of one year and further relying upon Annexure1 enclosed with this revision application submitted that this petitioner had joined as Project Officer-cum Dy. C.M.E. at Gaslitand Colliery w.e.f. 1st September, 1995 and he was never appointed as ‘Agent’ and the incident occurred due to act of God in view of incessant rain. It was also submitted that only a person who was designated and posted as ‘Agent’ can be fastened with criminal liability for the offence under the Act and no other person than an ‘Agent’ can be held responsible. Learned counsel in support of his contention relied on a judgment reported in (2014) 4 SCC 282 ; G.N. Verma V. State of Jharkhand and Another. 5. Contrary to the aforesaid submissions, Mr. Rajiv Sinha, A.S.G.I. submitted that the court below has rightly rejected the prayer for discharge of the petitioner as the petitioner during the relevant period was posted as ‘Agent’ as defined in Section 2(1)(c) of the Act, 1952 and he was taking part in the management, control, supervision or direction of the mines and the complaint was filed within time limit as required under Section 79(iii) of the Act, 1952. It was also submitted that the report of the enquiry commission was published in the official Gazette on 15.12.1999 and the complaint was filed on 01.12.2000 and the court took cognizance of offence on 07.12.2000 i.e. within the prescribed period of one year. It was also submitted that the report of the enquiry commission was published in the official Gazette on 15.12.1999 and the complaint was filed on 01.12.2000 and the court took cognizance of offence on 07.12.2000 i.e. within the prescribed period of one year. It was also submitted that at the stage of framing charge or discharge, the court has to see only the sufficiency of material on record for presuming that the said accident took place due to contravention of different provisions of the Coal Mines Regulation, 1957. Learned counsel, thus, submitted that the court below has not committed any illegality in refusing to discharge the petitioner. 6. Before adverting to the rival submissions of the learned counsels, I feel it necessary to examine the definition of ‘Agent’ as given in Section 2(1)(c) of the Act for proper determination of the issue involved in this case. Section 2(1)(c) of the Act reads as follows: “2 (1)(c) ‘agent’, when used in relation to a mine, means every persons, 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.” From bare perusal the above definition of ‘Agent’ it is clear that every person whether appointed as ‘Agent’ 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 is also a ‘Agent’. It is true that before amendment of the definition of ‘Agent’ in the year 1983, it was confined to individual who acts as representative of the owner but after amendment the scope of definition of ‘Agent’ has been substantially widened. 7. Besides definition of ‘Agent’ given in Section 2(1)(c) of the Act the same expression is given in Regulation 8A of the Coal Mines Regulation, 1957 which deals the appointment of an ‘Agent’. Regulation 8A reads as follows: “8-A. Appointment of agent-(1) The owner of a mine shall submit in writing to the Chief Inspector and the Regional Inspector, a statement showing name and designation of every person authorized to act on behalf of the owner in respect of management, control, supervision or direction of the mine. Regulation 8A reads as follows: “8-A. Appointment of agent-(1) The owner of a mine shall submit in writing to the Chief Inspector and the Regional Inspector, a statement showing name and designation of every person authorized to act on behalf of the owner in respect of management, control, supervision or direction of the mine. (2) The statement shall also show the responsibilities of every such person and the matters in respect of which he is authorized to act on behalf of the owner. (3) Every such person shall be deemed to be an agent for the mine or group of mines, as the case may be, in respect of the responsibilities as specified in such statement. (4) The statement aforesaid shall be submitted within one month from the date of coming into force of the Coal Mines (Amendment) Regulations, 1985, in the case of mines already opened, or reopened as the case may be, and in other cases within one month from the date of opening or reopening the mine. (5) Any change, addition or alteration in the names or other particulars of the aforesaid statement shall be reported in writing to the Chief Inspector and the Regional Inspector within seven days from the date of such change, addition or alteration. Section 2(1)(c) of the Act and Regulation 8-A if conjointly read, it brings within its fold not only a person who is appointed as ‘Agent’ in relation to a mine rather a person not appointed as an ‘Agent’ but who acts or purports to act on behalf of the owner of the mine and takes part in the management, control, supervision or direction of the mine or any part thereof is also comes within the extended meaning of ‘Agent’. Regulation 8A requires the owner of a mine to submit in writing the statement showing the name and designation of every person authorized to act on behalf of the owner. Regulation 8A requires the owner of a mine to submit in writing the statement showing the name and designation of every person authorized to act on behalf of the owner. Learned counsel for the petitioner relying upon Annexure4 (a letter of the opposite party no.2 dated 13/14.10.1993) submitted that in the list provided by the opposite party no.2 the names and designations of the persons authorized to act on behalf of the owner is given and the name of this petitioner does not find place in the said list, rather one A.K. Srivastava has been shown to be General Manager of Gaslitand project in Katras area but from the complaint petition, it appears that the petitioner has been shown to be an ‘Agent’ of Gaslitand colliery. Even in the complaint petition it is clearly mentioned that the accused persons were acting in their respective capacities as stated above and they were bound to conduct all mining operations and also to see that these were conducted in accordance with the provisions of Mines Act, Rules, Regulations and Orders thereunder. In the case G.N. Verma V. State of Jharkhand and Another (supra), the Hon’ble Supreme Court while dealing with almost similar situation held in Paragraph 18 as follows: “It is nobody’s case that G.N. Verma was appointed as an agent of any mine. Also, the complaint does not allege or state anywhere that G.N. Verma acted or purported to act on behalf of the owner of the mine or that he took part in the management, control, supervision or direction of any mine. In fact his duties and responsibilities have not been described in the complaint. In the absence of G.N. Verma’s duties having been spelt out in the complaint, it is not possible to say whether he was merely an administrative head of Karkata Colliery being its Chief General Manager or was he required to be involved in technical issues relating to the management, control, supervision or direction of any mine in Karkata Colliery. The averment in the complaint is bald and vague and is to the effect that at the relevant time G.N. Verma was the Chief General Manager/deemed agent and was exercising supervision, management and control of the mine and in that capacity was bound to see that all mining operations were conducted in accordance with the Act, the Rules, Regulations, Orders made thereunder.” 8. Obviously, in the said case the petitioner of that case G.N. Verma was shown to be posted as Chief General Manager. In the entire complaint case, as it appears from the judgment there was no averment that G.N. Verma was appointed as an agent of any mine but in the instant case it appears from the complaint petition itself that the petitioner was designated as an ‘Agent’ of Gaslitand colliery in Katras area. It has also been clearly stated that he was working in that capacity and bound to conduct operations and to see that these were conducted in accordance with the provisions of the Act, Rules, Regulations and Orders made thereunder and he was responsible for the lapse which occurred in the mine resulting in fatal incident. The court below has rightly considered that court of enquiry found this petitioner also responsible for several contraventions of different regulations. 9. It is a settled law that at the stage of either framing of charge or discharge of accused, the court has not to make any roving enquiry into the allegations or meticulously examine the material on record or to evaluate truthfulness or otherwise the allegations leveled in complainant against accused. At this stage even if accused is successful in showing some suspicion or doubt, it would be impermissible to discharge the accused before trial because it would result in giving finality to the accusations leveled by the complainant without allowing the complainant to adduce evidence to substantiate the same. In the case Rajiv Thapar & Ors. V. Madhu Lal Kapoor; (2013) 3 SCC 330 , the Hon’ble Supreme Court while dealing the discharge petition in a complaint case, held in Paragraph 28 as follows: “This is not a stage of evaluating the truthfulness or otherwise of the allegations leveled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has leveled allegations bringing out all ingredients of the charge(s) leveled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations leveled, trial must be held”. 10. In the light of the above discussion and upon analyzing all the materials available on record, I am satisfied that there is strong prima facie case and grave suspicion against the accused for proceeding in respect of charges alleged and the court below has rightly refused to discharge the petitioners. 11. Accordingly, this revision application, being devoid of any merit, is hereby dismissed. Application dismissed.