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2016 DIGILAW 1290 (JHR)

Piyush Mandhyan v. State of Jharkhand

2016-08-19

RONGON MUKHOPADHYAY

body2016
ORDER : Heard Mr. Satish Kumar Ughal, learned counsel appearing for the petitioners and Mr. Rajeeva Sharma, learned senior counsel appearing for the opposite party no. 2. 2. In this application the petitioners have prayed for quashing of the entire criminal proceedings in connection with Pakur (Malpahari) P.S. Case No. 73 of 2007 including the order dated 20.08.2007 passed by the learned Chief Judicial Magistrate, Pakur by virtue of which cognizance has been taken for the offences punishable under Sections 304/34 of the Indian Penal Code. 3. A First Information Report was instituted being Pakur (Malpahari) P.S. Case No. 73 of 2007 wherein it was alleged that the husband had gone for his duties in the Stone Quarry situated at Mouza – Bishunpur wherein on account of falling of a bolder he succumbed to his injuries. It has been alleged that the Foreman and Mate of the Company have not provided sufficient security which resulted in the incident. Upon completion of the investigation charge-sheet was submitted by the police and subsequent thereto vide order dated 20.08.2007 cognizance was taken by the learned Chief Judicial Magistrate, Pakur for the offences punishable under Sections 304/34 of the Indian Penal Code. 4. It has been submitted by the learned counsel appearing for the petitioners that no case under Section 304 of the Indian Penal Code is made out against the petitioners in view of the special provisions under Section 72 (C) of the Mines Act. Learned counsel submits that an enquiry was conducted by the Director General of Mines Safety pursuant to which the petitioner nos. 2 and 3 were suspended for specific period and so far as the petitioner no. 1 is concerned, there was no dereliction on his part as he had made adequate arrangements for the safety of the mines. Learned counsel further submits that so far as Section 299 of the Indian Penal Code is concerned, which defines culpable homicide, the accident which has resulted in the death of the deceased does not come within the purview of the said definition and, therefore, the petitioners cannot be proceeded against in a case instituted under Section 304 of the Indian Penal Code. Refereeing to the supplementary affidavit preferred by the petitioners submission has been advanced that admittedly the case was finally closed and no prosecution was lodged under the Mines Act and in view of the special provisions enacted therein no case under the Indian Penal Code could lie against the petitioners. Learned counsel further submits that an amount of Rs. 95,000/- as compensation has already been paid to the wife of the deceased on the basis of compromise and on this score also the entire criminal proceedings deserves to be quashed. 5. At this, Mr. Rajeeva Sharma, learned senior counsel appearing for the opposite party no. 2, has submitted that there is no bar if a proceedings under the Indian Penal Code as well as the Mines Act continues. It has been submitted that since no case under the Mines Act was instituted the petitioners cannot take the plea that the special legislation shall override the general Act. Learned senior counsel further submits that the enquiry report itself suggests that the petitioner nos. 2 and 3 were particularly responsible for having not taken sufficient precaution to prevent the accident and in view of such fact a case under Section 304 of the Indian Penal Code is definitely made out against the petitioners. 6. The main plank of arguments of the learned counsel for the petitioners is with respect to the enquiry conducted by the Director General of Mines Safety wherein upon conclusion of enquiry it was decided not to proceed further in the matter and except suspending the petitioner nos. 2 and 3 for a limited period no further action was necessitated as per the said report. 7. The First Information Report reveals that the accident had occurred on account of a bolder falling upon the deceased resulting in his death. The enquiry report if conjointly read with the allegations made in the First Information Report would suggest that the petitioner nos. 2 and 3 who were working as Manager and Mining Mate of the Mines had failed to make and maintain the side of the stone bench secured as required under regulation 106 of the Mines Regulations which resulted in the incident. Although the deceased-employee was also made partly responsible for the accident but that by itself cannot dilute the criminal prosecution against the petitioner nos. 2 and 3. Although the deceased-employee was also made partly responsible for the accident but that by itself cannot dilute the criminal prosecution against the petitioner nos. 2 and 3. In the enquiry report it has also been concluded that so far as the petitioner no. 1 is concerned, he had made available all safety equipments in the mines and had appointed statutory mines officials as per requirement of law and, therefore he was not found responsible for the accident which had taken place. 8. Learned counsel for the petitioners in course of his argument has referred to a directive issued by the Ministry of Labour, Government of India dated 08.08.2000 in which all the Chief Secretaries of the State Governments were directed that before filing a case in the court of law the officer in-charge should await the report of the Mines Inspectorate. The directive so issued does not have much bearing in the present case as the First Information Report was instituted much prior to the submission of the enquiry report. The enquiry report clearly holds the petitioner nos. 2 and 3 responsible for the accident. Even otherwise the question of special legislation overriding the general law would not arise in the present case as admittedly no case under Section 72 (C) of the Mines Act was instituted as the petitioner nos. 2 and 3 were found responsible for violating regulation 106 of the Coal Mines Regulation. 9. At this juncture, learned counsel for the petitioners has referred to various judgments on similar issues passed by this Court in the case of A.K. Sen Gupta @ Alok Kumar Sen Gupta vs. The State of Jharkhand reported in 2002 (2) EastCrC 77 (Jhr) : 2002 (3) JLJR 472 , K.K. Sharan & Ors. vs. State of Jharkhand & Anr., reported in 2005 (2) EastCrC 407 (Jhr) : 2005 (3) JCR 481 (Jhr) and Birendra Kumar Bhakat vs. State of Jharkhand & Anr., reported in 2005 (3) EastCrC 530 (Jhr) : 2005 (3) JLJR 198 . 10. vs. State of Jharkhand & Anr., reported in 2005 (2) EastCrC 407 (Jhr) : 2005 (3) JCR 481 (Jhr) and Birendra Kumar Bhakat vs. State of Jharkhand & Anr., reported in 2005 (3) EastCrC 530 (Jhr) : 2005 (3) JLJR 198 . 10. In the case of A.K. Sen Gupta @ Alok Kumar Sen Gupta vs. The State of Jharkhand (supra) the First Information Report was instituted under the provisions of Section 304/34 of the Indian Penal Code read with Section 72(C) of the Mines Act as also Regulation 127/128 of the Mines Regulations, 1961 and it was held therein that under such fact situation Section 299 of the Indian Penal Code shall not come into play in view of the punishment prescribed under Section 72 (C) of the Mines Act. Similar was the findings with respect to the other judgments which have also been referred to by the learned counsel for the petitioner. A further reference has been made to the judgment in the case of B. Muthuraman @ Balasubramanian Muthuraman & Ors. vs. State of Jharkhand reported in [ 2009 (3) JCR 261 (Jhr.)] wherein it was held that under the Mines and Minerals Development and Regulation Act when there is special punishment provided in a special act the same takes precedence over the general punishment under the Indian Penal Code. The same view was expressed in the case of Manish Khemka vs. State of Jharkhand & Ors. reported in 2009 (2) EastCrC 535 (Jhr) : 2009 (2) JLJR 720 which has also been referred to by the learned counsel for the petitioners. So far as the question of law which has been raised by the learned counsel for the petitioners that when there is a special legislation as in the case under the provisions of the Mines and Minerals Development and Regulation Act the same shall prevail over the general law and no case under the Indian Penal Code can be made out against the petitioners this question has already been answered by the Hon’ble Supreme Court in the case of State (NCT of Delhi) vs. Sanjay reported in (2014) 9 SCC 772 wherein it was held that there is no bar to proceed under Section 379 of the Indian Penal Code even if a case is also made out under the Mines and Minerals Development and Regulation Act. 11. 11. Coming back to the facts of the present case it is an admitted position that no case under Section 72 (C) of the Mines Act was instituted by the competent authority. The enquiry report clearly held the petitioner nos. 2 and 3 liable for dereliction/negligence which resulted in the accident which had taken place. In such circumstance, therefore, the petitioner nos. 2 and 3 cannot escape from being prosecuted under Section 304 of the Indian Penal Code in view of their inability and negligence in taking effective measures to prevent such incident in taking place. So far as the petitioner no. 1 is concerned, he being the owner of the Mines was found in the enquiry to have played virtually no role or was responsible for the incident which had taken place. The enquiry report has not found the petitioner no. 1 responsible for the incident as sufficient efforts have been made by him by making available all the safety equipments in the mine and had appointed the statutory mines official as per requirement of law. Neither the First Information Report nor the enquiry report reveal an act on the part of the petitioner no. 1 so as to be prosecuted for the offence punishable under Section 304 of the Indian Penal Code and in such view of the matter continuation of the criminal proceedings as against the petitioner no. 1 shall be an abuse of the process of Court and therefore, the prosecution initiated against him is liable to be quashed. 12. As a consequence to the discussions made hereinabove, this application is allowed so far as the petitioner no. 1 is concerned, by quashing the entire criminal proceedings including the order dated 20.08.2007 passed by the learned Chief Judicial Magistrate, Pakur in connection with Pakur (Malpahari) P.S. Case No. 73 of 2007 by which cognizance was taken under Sections 304/34 of the Indian Penal Code. 13. So far as the petitioner nos. 2 and 3 are concerned, this Court having found the culpability of the petitioners in the incident which had led to institution of the First Information Report, I am not inclined to entertain this application so far as those petitioners are concerned and accordingly the application stands rejected as regards the petitioner nos. 2 and 3. 14. This application is allowed in part. 15. However, the petitioner nos. 2 and 3. 14. This application is allowed in part. 15. However, the petitioner nos. 2 and 3 are at liberty to raise all the points at the appropriate stage.