Jharkhand High Court

Ashwini Kumar vs The State Of Jharkhand on 20 December, 2021

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             IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 1012 of 2021

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Ashwini Kumar, aged about 53 years, son of Baldeo Sharma, resident of House No.18, PTC Road, Near SBI Bank, Matwari Chowk, Hazaribagh, PO Hazaribagh, PS Hazaribagh, District Hazaribagh, presently posted as Mines Manager, Hindalco Industries Limited, Kathuatia Open Cast Coal Mines ..... Petitioner

-- Versus --

      The State of Jharkhand                 ...... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Indrajit Sinha, Advocate For the State :- Mrs. Niki Sinha, Advocate

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5/20.12.2021 This petition has been filed for quashing of the entire

criminal proceeding including the First Information Report in connection

with Pandwa P.S. Case No.36 of 2021 dated 30.04.2021 for the offences

punishable under section 304 of the Indian Penal Code, now pending in

the court of learned Chief Judicial Magistrate, Palamau at Daltonganj.

2. On the limited statement of the informant, the said FIR was

registered stating therein that:

The case of the informant in nutshell is that one Birmani Saw has given a statement before Pandwa Police at Pandwa Police Station stating, inter alia, that he is residing nearby at Kathuatia Open Cast Coal Mines of Hindalco Industries Limited, where there is open mine in which water logging has been found. It is further alleged that inspite of several request, the said water logging has not been cleared by the Management of Hindalco Industries Limited. On 30.04.2021, at about 08:30 a.m, his son Aman Kumar Saw, aged about 16 years went for natural call and due to slippery, he fell down in the water logging of mine and later on died.

3. Mr. Indrajit Sinha, the learned counsel appearing on behalf

of the petitioner submits that petitioner is the mines agent of Kathuatia

Open Cast Coal Mines of Hindalco Industries Limited. He further submits

that the petitioner cannot be held liable to vicarious liability in the F.I.R.

He further submits that Hindalco Industries Limited (Kathautia Open Cast

Mines) is situated in the village Kathautia and presently there are four

pits i.e. (a), (b), (c) and (d). Amongst these four pits, Pit (c) is not

operational which is situated near Village Bagwanwa. He submits that

since the mines is Open Cast Mine, the local people residing nearby

village are indulged in illegal mining of coal by the local people. He

further submits that M/s Hindalco Industries Limited had erected the

fencing wire, caution board and CCTV camera which has been thrown out

for the purpose of illegal mining of coal by local people. He submits that

in view of the allegations made in the F.I.R., no case under section 304

IPC is made out so far the petitioner is concerned. He further submits

that if any action is required that is under the Mines Act as there is

special provision for penalty and sentence. He refers to section 5 of the

Cr.P.C and submits that this section is crystal clear on the point of any

special procedure prescribed by any such law. He further submits that it

is well settled that when there is a Special Act, the provisions of the I.P.C

will not be applicable. He relied in the case of "Hare Kant Jha v. The State

of Jharkhand and Another", 2014 SCC Online Jhar 1560 and refers to

paragraph no.8 of the said judgment which is as under:

"8. Having heard counsels for both the sides and upon going through the FIR, I find that there is allegation in the FIR that the accident had taken place in the mines as unauthorized persons were committing theft of coal in the mines. Accordingly even if allegations in the FIR are accepted in entirety, the offence, if any, made out against the petitioner relates to contravention of the provisions of the Mines Act, specially Sections 23, 70, 72, 72-C of the Mines Act, which relate to the accident in the mines, causing loss of life. Section 79 of the Mines Act clearly lays down that no Court shall take cognizance of any offence under this Act, unless complaint thereof is made by the competent authority within the prescribed period. Section 75 of the Act clearly lays down the persons, who are authorized to make the complaint for the offence under the Act."

4. He further relied in the case of "Sharat Babu Digumarti v.

Government (NCT of Delhi)", (2017) 2 SCC 18 and refers to paragraph

nos.31, 32 and 37 of the said judgment, which are as under:

"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. 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.

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."

5. He further relied in the case of "A.K.Sen Gupta @ Alok

Kumar Sen v. The State of Jharkhand", 2002 Cr.LJ 2272. Paragraph no.7

of the said judgment is as under:

7. Police had assumed jurisdiction on the ground of loss of life and bodily injury to persons and a number of persons might have lost life but when the loss of life, notwithstanding the number of lives is due to an accident occurring due to non- compliance of certain rules and regulations of the Act or the rules or the regulation made therein, then all the offences, notwithstanding the loss of life, will be covered by various

sections of the Act and Rules and Regulations for which punishment has been prescribed under Section 72 of the Act. Mining operations are always hazardous and risky for life and serious bodily injuries to the employees and officers are always there and because of the nature of the work itself and the hazard ingrained therein, if any loss of life occurs, it does not mean that any person in fact had any intention to cause the death of the persons who ost their lives in courseof operation in which they had been engaged in. Thus, necessary ingredients for an offence under Section 299, IPC and punishable under Section 304, IPC will be wanting in such cases and similarly, the recklessness and negligence will remain as the cause of the loss of lives, but for recklessness and negligence there is punishment prescribed in the law 72-C itself. In this connection, the reporteddecision of this Court in Cr. Misc. Nos. 4050/1997R and 4108/1997R has been referred to by the petitioner. In those cases, similar situation was there and the Court had quashed the proceedings alter discussing all the aspects of the matter and agreeing with those arguments, I also find that when the law is enshrined under Section 72-C of the Mines Act itself talks not of life, but prescribes a punishment under that very section then in that circumstances for loss of life, no separate prosecution can be there. In view of this, I find merit in this application and consequently, the FIR in Jharia (Tisra) P.S. Case No. 49/2001 pending in the Court of learned Chief Judicial Magistrate.Dhanbad, is quashed, so far the petitioner is concerned. This application is allowed.

6. Mrs. Niki Sinha, the learned counsel appearing on behalf of

the respondent State submits the case has been rightly instituted and she

further submits that the case is not fit to be interfered by this Court.

7. On perusal of the judgment in the case of "Sharat Babu

Digumarti v. Government (NCT of Delhi)" (supra) it transpires at its

conclusion that the High Court has fallen into error that though the

charge has not been made out under section 67 of the IT Act, yet the

appellant could be proceeded under Section 292 IPC. There is no doubt

that when a special legislation has been enacted having special provisions

in a specific cause of action, the same would prevail over the general law.

The F.I.R seems to be related with Kathautia Mines which is open cast

mines, which attract the penal provision under sections 23, 70, 72 and