Jharkhand High Court

Phool Chand Sood @ P.C. Sood vs The State Of Jharkhand on 18 August, 2021

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr.MP. No. 861 of 2013

1. Phool Chand Sood @ P.C. Sood, son of late Tirath Ram Sood, resident
   of House No. 1334, Sector 28, P.O. and P.S. & District-Faribdabad
   (Haryana) 121008
2. Ramesh Khanna, son of late Shri M.L. Khanna, resident of C-1/1281,
   Vasant Kunj, P.O. and P.S. Vasant Kunj, New Delhi-110070
                       ...... Petitioners
                       Versus
1.The State of Jharkhand
2. The Union of India, represented by the Director of Mines Safety,
Dhanbad Region No. 1, also designated as Inspector of Mines, who is also
appointed under Section 5(1) of the Mines Act, 1952
                                        ...... Opposite Parties
                       With
                    Cr.MP. No. 2866 of 2013

 Rikhab Das Jain, son of Manphul Singh Jain, resident of H.No. 737,
Sector-12, Chaprauli, Post Office and Police Station-Chaprauli, Bagupat,
(Uttar Pradesh), at present residing at Manoram Nagar, Luby Circular
Road, Post Office and Police Station and District-Dhanbad (Jharkhand)
                                                     ...... Petitioner
                        Versus
1.The State of Jharkhand
2. The Union of India, represented by the Director of Mines Safety,
Dhanbad Region No. 1, also designated as Inspector of Mines, who is also
appointed under Section 5(1) of the Mines Act, 1952
                                          ...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner(s) : Mr. Indrajit Sinha, Advocate Mr. Ankit Vishal, Advocate (in Cr.M.P. No. 861/2013) Mr. Jai Prakash, Sr. Advocate (in Cr.M.P. No. 2866/2013) For the State : Ms. Niki Sinha, Advocate (in Cr.M.P. No. 861/2013) Ms. Ruby Pandey, Advocate (in Cr.M.P. No. 2866/2013) For the Union of India : Mr. Laxman Kumar, C.G.C (in both cases)

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10/Dated: 18/08/2021 Heard Mr. Indrajit Sinnha learned counsel and Mr. Jai Prakash, learned senior counsel for the petitioners, Ms. Niki Sinha and Ms. Ruby Pandey, learned counsel for the State and Mr. Laxman Kumar, learned counsel for the Union of India.

2. These petitions have been heard through Video Conferencing

in view of the guidelines of the High Court taking into account the

situation arising due to COVID-19 pandemic. None of the parties have

complained about any technical snag of audio-video and with their consent

these matters have been heard.

3. In both the petitions common facts and law are involved that

is why both the petitions have been heard together.

4. Petitioners have challenged the order dated 14.03.2013 passed

by the learned Judicial Magistrate, Ist Class, Dhanbad in C.M.A. Case No.

614 of 2000 whereby petitions for dropping the proceeding against the

petitioners have been rejected.

5. Complaint petition was filed in the Court of learned Chief

Judicial Magistrate, Dhanbad by the Director of Mines Safety, Region No.

1, Dhanbad based on the enquiry report stating therein that 64 persons

were engaged in belowground workings, unprecedented heavy rains took

place within a short span of time causing rapid rise in the water level of

an adjoining river on its surface which exceeded the prefixed withdrawal

level requiring withdrawal of persons from belowground working but the

same went unnoticed. Attempts to raise the persons were started much

later and met with little success as the boilers serving the steam winders

of the outlets which had not been attended to, failed to develop steam at

adequate pressure. Consequently, the rains which continued unabated

caused further rise in the water level of the river, which exceeded the

recorded highest flood level and water ultimately breached an

embankment built as a protective measure against it almost two hours

water. The flood water entered into an adjoining quarry, then breached a

retaining wall built against it, and flooded an adjoining quarry with

connected belowground workings. Water soon filled up the entire

belowground workings trapping all the 64 working persons who could not

be brought to the surface. Later on five dead bodies of the minors were

recovered. On these premises, complaint has been filed by the Director of

Mines Safety, Region No. 1, Dhanbad.

6. Mr. Indrajit Sinha, learned counsel appearing on behalf of the

petitioners in Cr.M.P. No. 861 of 2013 draws the attention of the Court to

the complaint petition contained as Annexure-1 and submits that the

petitioners have been shown as accused nos. 3 and 2 respectively in the

complaint petition wherein they have been described as deemed agent,

Gaslitand Colliery. He further draws the attention of the Court to the

particulars of the accused persons described in the complaint petition and

by giving much emphasis submits that in the particulars, they have been

shown as deemed agent under section 2(c) of the Mines, Act, 1952 (here-

in-after referred to Act). He submits that there is no mention of deemed

agent under Section 2(c) of the Mines Act. He submits that the case of

the petitioners is fully covered with judgment in the case of "G.N. Verma

Vs. State of Jharkhand" reported in (2014) 4 SCC 282. He submits

that the case of " G.N. Verma" (supra) was allowed in the same facts

of the present case. This was recorded in para 6 of the said judgment. In

the case of " G.N. Verma" (supra), the Single Judge referred the matter

to the Division Bench and the Division Bench of this Court interpreted

Section 18(5) of Act and came to the conclusion that in view of the

extended definition of agent read with section 18(5) of the Act, the Chief

General Manager of a Mine would be a deemed agent responsible for the

management, control, supervision or direction of a mine or a part thereof.

He submits that after judgment of the Division Bench, the said G.N. Verma

approached the Hon'ble Supreme Court which was decided by the Hon'ble

Supreme Court on 06.03.2014 in Criminal Appeal No. 122 of 2004

reported in (2014) 4 SCC 282. Mr. Sinha, learned counsel for the

petitioners further submits that the definition of agent under section

2(1)(c) of the Act prior to its amendment and subsequent to its

amendment has been dealt with by the Hon'ble Supreme Court in para 13

of the said judgment.

"13. The definition of agent appearing in Section 2(1)(c) of the Act prior to its amendment and subsequent to its amendment reads as follows:

"2. (1)(c) 'agent', when used in relation to a mine, means any individual, whether appointed as such or not, who acts as the representative of the owner in respect of the management, control and direction of the mine or of any part thereof and as such is superior to a manager under this Act;"

After its amendment, Section 2(1)(c) of the Act reads as follows:

"2. (1)(c) 'agent' when used in relation to a mine, means every person, 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;"

7. He submits that the Hon'ble Supreme Court has considered

section 8-A of the Coal Mines Regulations, 1957 in para 16 of the said

judgment. For the correct appreciation of the case, para 16 of the said

judgment is quoted here-in-below:-

"16. It may be noticed that neither the definition of agent nor Section 18(5) of the Act refer to a deemed agent. This expression is to be found in Regulation 8-A of the Coal Mines Regulations, 1957 dealing with the appointment of an agent. Regulation 8-A reads as under:-

" 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 of 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."

8. Mr. Indrajit Sinha, learned counsel for the petitioners submits

that duty of the petitioners has not been explained in the complaint

petition apart from that deemed agent, this aspect of the matter has been

considered by the Hon'ble Supreme Court in para 18 of the said judgment

and the facts of the case of the present petitioners are identical in nature.

Para 18 of the said judgement is quoted here-in-below:-

"18. 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."

9. He submits that no case is made out against the petitioners as

there is no definition of deemed agent as it has been held by the Hon'ble

Supreme Court in "G.N. Vemra" (supra). He submits that proceeding,

so far petitioners are concerned, is fit to be quashed.

10. Mr. Jai Prakash, learned senior counsel for the petitioner in

Cr.M.P. No. 2866 of 2013 submits that so far as case of the petitioner is

concerned, that is similar in nature. He submits that petitioner has been

shown as accused no. 4 in the complaint petition as arrayed as Area Safety

Officer and deemed agent of Gaslitand Colliery. He relied the same

judgment as relied by Mr. Indrajit Sinha and supplemented his argument

by way of referring para 24 of the said judgment and submits that when

a statute creates an offence and imposes a penalty of fine and

imprisonment, the words of the section must be strictly construed in favour

of the subject. He submits that this aspect of the matter has been

considered in para 24 of the said judgment wherein the Hon'ble Supreme

Court has held as under:

"24. The law is well settled by a series of decisions beginning with the Constitution Bench decision in W.H. King v. Republic of India8 that when a statute creates an offence and imposes a penalty of fine and imprisonment, the words of the section must be strictly construed in favour of the subject. This view has been consistently adopted by this Court over the last, more than sixty years."

11. Mr. Jai Prakash, learned senior counsel further elaborated his

argument by submitting that the occurrence took place on 27.09.1995

and complaint was filed on 01.12.2000. He referred Section 73 of the

Mines Act and submits that punishment under this Act is three months and

under section 72C(1)(a) of the Mines Act, 1952, there is punishment for

two years. He further submits that in view of section 468 Cr.P.C. in the

light of limitation prescribed under that section, proceeding itself is not

maintainable.

12. According to him, for the punishment with fine, limitation is

prescribed six months, for the punishment with imprisonment for a term

not exceeding one year, limitation is prescribed one year and for the

punishment with imprisonment for a term exceeding one year but not

exceeding three years, limitation is prescribed three years. On these

counts, he submits that the institution of this complaint petition itself is

bad in law. It has been filed after more than five years of the occurrence.

13. Mr. Jai Prakash, learned senior counsel for the petitioner

further draws the attention of the Court to Annexure-2 of the petition and

submits that identical matter has been decided by a Co-ordinate Bench of

this Court in Cr.M.P. No. 1415 of 2007 dated 20.03.2012 by which order

taking cognizance was quashed and the said order was challenged by the

authority concerned before the Hon'ble Supreme Court in Special Leave to

Appeal (Cri.) No. 9414 of 2012 which was dismissed vide order dated

23.11.2012. The said order has been annexed as Annexure-3 to the

petition.

14. On the aforesaid grounds, both the learned counsels submit

that the proceedings so far the petitioners are concerned, are not

surviving.

15. Mr. Laxman Kumar, learned counsel appearing on behalf of

O.P. No. 2 filed counter-affidavit. He relied on para 9, 11, 13, 14, 16, 17,

19, 26 and 29 of the counter-affidavit and submits that in view of

averments made in these paragraphs, these petitions are fit to be

dismissed.

16. On perusal of complaint petition, it transpires that the

petitioners have been made accused nos. 2, 3 and 4 as deemed agent

in the complaint petition. Particulars of the accused has been explained

in para IV of the complaint which is quoted here-in-below:-

"IV. Particulars of the accused:- At the relevant period during which the offence was committed, accused no. 1 was the Director (T) (O) & Nominated Owner under section 76 of the Mines Act, 1952, accused nos. 2, 3 and 4 were the Chief General Manager, Additional General Manager and Area Safety Officer of Katras Area respectively and Deemed Agents under section 2(c) of the Mines Act, 1952, accused nos. 5 and 6 were the Agent and Manager respectively, accused no. 7 was the Assistant Manager, accused nos. 8 and 9 were

the Safety Officer and Colliery Engineer respectively, accused no. 10 was the Winding Engine driver and who is now dead, accused no. 11 was the Banksman, accused nos. 12 and 13 were the Firemen of Gaslitand colliery.

The aforesaid 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 the Mines Act, Rules, Regulations and orders made thereunder."

17. Regulation 8-A of the Coal Mines Regulations, 1957 requires

owner of a mine to submit in writing a statement showing name and

designation of every person authorized to act on behalf of owner in

respect of management, control, supervision or direction of a mine. The

petitioners have not been shown as owner of the said mines and no

document to that effect has been brought on record by the complainant.

The Hon'ble Supreme Court considered the definition of agent in Section

2 (1) (c) prior to its amendment and subsequent amendment. In para 20

of the "G.N. Verma" (supra) the Hon'ble Supreme Court has held as

under:-

20. Insofar as the criminal complaint is concerned, it does not contain any allegation against G.N. Verma. The only statement concerning him is that he was the Chief General Manager/deemed agent of the mine 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. In the face of such a general statement, which does not contain any allegation, specific or otherwise, it is difficult to hold that the Chief Judicial Magistrate rightly took cognizance of the complaint and issued summons to G.N. Verma. The law laid down by this Court in Harmeet Singh Paintal (though in another context) would be squarely applicable. Under the circumstances, we are of the opinion that on the facts of this case and given the absence of any allegation in the complaint filed against him no case for proceeding against G.N. Verma has been made out."

18. On perusal of para IV of the complaint, it transpires that the

facts of the present case are similar to that of para 20 of the said

judgment.

19. It is well-settled that series of decisions beginning with the

Constitution Bench decision in W.H. King Vs. Republic of India that when

a statue creates an offence and imposes a penalty of fine and

imprisonment, the words of the section must be strictly construed in favour

of the subject. This aspect of the matter has been considered by the

Hon'ble Supreme Court in par 24 of the judgment of G.N. Verma

(supra).

20. The Court finds force in argument of Mr. Jai Prakash, learned

senior counsel for the petitioner with regard to limitation under section