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2023 DIGILAW 609 (JHR)

Tarasis Mondal v. State of Jharkhand

2023-05-02

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. A.K. Mehta, learned counsel appearing for the petitioners and Mr. Shailesh Kumar Sinha, learned A.P.P. for the State. 2. This petition has been filed for quashing of the FIR, in connection with Chirkunda (Panchet) P.S. Case No. 270 of 2013 corresponding to G.R. No. 4644 of 2013, registered for the offence under Sections 288, 337, 338, 304 and 34 of the Indian Penal Code, pending in the court of learned CJM, Dhanbad. 3. The prosecution case arises out of the self statement of Sub Inspector Umesh Kumar Thakur, the officer Incharge, Panchet O.P under Chirkunda P.S recorded by the Chirkunda (Panchet) OP on 12.11.2013 in respect to an accident which had occurred in Sushil Incline of Basanti Mata Colliery under CV Area of M/s BCCL at or about 11.15 AM on 11.11.2013 resulting in death of 4 persons. The prosecution case in brief is that on 11.11.2013 at about 12.30 noon, the informant received information on telephone from a CISF Personnel that a coal roof in Sushil Incline of Basanti Mata Colliery has fallen down in which some workmen have sustained injuries while others lying under the fallen roof. The informant is alleged to have made necessary entries in the Station diary and after informing senior executives visited the place of occurrence along with police force. The informant came to learn that due to the roof fall at the 16" level 21 deep, GP (top) Seam of Sushil Incline have been trapped under the fallen roof while 2 workmen namely Md. Quaim and Sukal Soren (Jr. Overman) have sustained injuries and after giving first aid have been referred to the Central Hospital for better treatment. It has also been alleged that on receiving information of such occurrence villagers assembled outside the Sushil Incline and therefore request was made for sending additional force and police officers. It has also been alleged that the informant visited the place of occurrence accompanied by the Rescue Team an found 2 dead bodies. Upon enquiry the informant came to learn that the said mine had remained closed since 2009 and had reopened recently on 16.07.2013 on permission being granted by the Director General of Mines Safety. The informant has alleged that depillaring work was in progress at the place of occurrence and due to lack of proper support during the exit of SDL Machine roof had fallen down. The informant has alleged that depillaring work was in progress at the place of occurrence and due to lack of proper support during the exit of SDL Machine roof had fallen down. The workers present at the spot reveled that on account of less wooden support for the roof the accident took place. It has also been stated that in the mining Sirdar's Daily Mines Inspection Report such fact had been mentioned but no adequate safety measures were taken nor wooden support were increased. It has further been alleged that 4 dead bodies of employees namely Arup Chatterjee, Manager, Harilal, Underground Trammer, Sita Ram Manjhi, Explosive Carrier and Littu Sahu, roof wielding Mazdoor were recovered from the place of occurrence by the Rescue Team and the bodies were identified from the clothes, lamp number etc. On the basis of the statement of Sri Umesh Kumar Thakur, Chirkunda (Panchet) OP registered the same as Chirkunda (Panchet) P.S Case No. 270/2013 u/s 288, 337, 338, 304 and 34 of the Indian Penal Code. 4. Mr. Mehta, learned counsel appearing for the petitioners submits that the office of the Director General of Mines Safety, Dhanbad immediately took up enquiry for the causes relating to fatal accident of 11.11.2013 and a notice to that effect was issued by the Director, Mines Safety, Area No. 2, Dhanbad. He further submits that for the same incident, a case under the Mines Act has also been registered in the year 2014 itself, which was numbered as C.M.A. Case No. 36 of 2014. He further submits that when the Special Act is there, the case lodged under the Penal Sections of IPC is unwarranted. He draws the attention of the court to Annexures- 3 and 4, which are the letters of the Government of India and addressed to the Chief Secretaries of the States, whereby they have been requested that under the IPC Sections cases may not be registered in the case relating to mining accident. He further submits that even if two witnesses have been examined in view of the status report, however, to allow to continue the proceeding, will amount to an abuse of process of law. On these grounds, learned counsel appearing for the petitioners submits that entire criminal proceeding may kindly be quashed. 5. Mr. He further submits that even if two witnesses have been examined in view of the status report, however, to allow to continue the proceeding, will amount to an abuse of process of law. On these grounds, learned counsel appearing for the petitioners submits that entire criminal proceeding may kindly be quashed. 5. Mr. Sinha, learned A.P.P. appearing for the State submits that the incident has taken place and that’s why the case has been registered. 6. In view of the above submissions of the parties, the court has gone through the materials available on record. From the contents of the FIR as well as the complaint case, the court finds that for the said accident, both the cases have been registered. Further looking into Annexures-3 and 4, which are letters of the Government of India to the Chief Secretaries of the States, wherein request has been made that for mining accident, the penal provisions of IPC may not be inserted. 7. It is well settled that if the Special Act is there and provisions of punishment are already there, IPC Sections are not warranted. In this regard, reference may be made to the case of Sharat Babu Digumarti v. Government (NCT of Delhi), reported in (2017) 2 SCC 18 , wherein the Hon’ble Supreme Court in paras-31, 32 and 37 held as follows:- “31. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Sections 67-A and 67-B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals. However, the said protection has been expanded in the dictum of Shreya Singhal and we concur with the same. 32. Section 81 of the IT Act also specifically provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 IPC makes offence sale of obscene books, etc. All provisions will have their play and significance, if the alleged offence pertains to offence of electronic record. It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent. This is the mandate behind Section 81 of the IT Act. The additional protection granted by the IT Act would apply. xxx xxx xxx 37. The aforesaid passage clearly shows that if legislative intendment is discernible that a latter enactment shall prevail, the same is to be interpreted in accord with the said intention. We have already referred to the scheme of the IT Act and how obscenity pertaining to electronic record falls under the scheme of the Act. We have also referred to Sections 79 and 81 of the IT Act. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of IPC and in this case, Section 292. It is apt to note here that electronic forms of transmission are covered by the IT Act, which is a special law. It is settled position in law that a special law shall prevail over the general and prior laws. When the Act in various provisions deals with obscenity in electronic form, it covers the offence under Section 292 IPC.” 8. Reference may further be made to the case of K.K. Sharan & Ors. v. State of Jharkhand & another, reported in 2005 (2) East Cr C 407 (Jhr). Para-6 of the said judgment is quoted hereinbelow:- “6. On a careful scrutiny on the facts and circumstances of the case and also the submissions of the parties and legal position in this regard, it appears that petitioners have already faced the trial and they have been acquitted of the charges levelled against them. Para-6 of the said judgment is quoted hereinbelow:- “6. On a careful scrutiny on the facts and circumstances of the case and also the submissions of the parties and legal position in this regard, it appears that petitioners have already faced the trial and they have been acquitted of the charges levelled against them. Now they have also been chargesheeted under various sections of IPC and when there is a statutory provision for punishing the delinquent, the continuance of the case under other sections of IPC is not justified and not proper. The learned counsel for the petitioners have referred to various sections of the Act and Regulation to show that for the occurrence committed on their part, there is a provision for punishing the delinquent or so under various regulations and, therefore, the instant case should not be allowed to continue and it will amount to abuse of the process of Court. Further a man cannot be prosecuted twice or convicted twice for the. same occurrence or for the same cause of action and here petitioners have already faced criminal prosecution under various sections of Mines Act and Regulation and they have been acquitted of the charges levelled against them and further prosecution of the petitioners under these sections will be violative of the principle of natural justice.” 9. In view of the above facts, reasons and analysis and also considering the judgment of Sharat Babu Digumarti (Supra), when a special legislation has been enacted having special provision in a specific cause of action, the same would prevail over the general law. 10. It is well settled that when the case is not made out and the High Court comes to a conclusion that to allow the proceeding to continue will amount to an abuse of process of law, the High Court is competent to exercise power under Section 482 Cr.P.C. and also under Article-226 of the Constitution of India, at any stage. A reference may be made to the judgment passed by the Hon'ble Supreme Court in Anand Kumar Mohatta v. State (NCT of Delhi); reported in (2019) 11 SCC 706 . Paragraph 16 of the said judgment is quoted herein below:- “16. A reference may be made to the judgment passed by the Hon'ble Supreme Court in Anand Kumar Mohatta v. State (NCT of Delhi); reported in (2019) 11 SCC 706 . Paragraph 16 of the said judgment is quoted herein below:- “16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636 , para 7 : 2000 SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591 , para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237] . Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court.” 11. As a cumulative effect of the above facts and circumstances, this petition is allowed and the FIR including the entire criminal proceeding, in connection with Chirkunda (Panchet) P.S. Case No. 270 of 2013 corresponding to G.R. No. 4644 of 2013, registered for the offence under Sections 288, 337, 338, 304 and 34 of the Indian Penal Code, pending in the court of learned CJM, Dhanbad, is hereby, quashed. 12. Accordingly, this criminal miscellaneous petition stands allowed and disposed of.