Jharkhand High Court

M/S A.C.C. Ltd. vs The State Of Jharkhand on 27 July, 2021

                                                1                     Cr. M.P. No. 152 of 2016


                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                    Cr. M.P. No. 152 of 2016
             1.   M/s A.C.C. Ltd., Chaibasa through its General Manager-HR, namely,
                  Dinesh Kumar Pathak, son of Late R.S. Pathak, resident of SSB-3, P.O.
                  & P.S. Jhinkpani, District- West Singhbhum
             2.   Amit Kumar, son of Mritunjay Pd. Arya, resident of Quarter No.JSQ-51,
                  ACC Colony, Jhinkpani, P.O. & P.S. Jhinkpani, District- West Singhbhum
                                                                   ... Petitioners
                                           -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 Petitioners : Mr. A.K. Kashyap, Sr. Advocate Mr. Vijay Kant Dubey, Advocate For the Opposite Party-State : Mr. Veer Vijay Pradhan, A.P.P.

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07/27.07.2021. Heard Mr. A.K. Kashyap, learned Senior counsel assisted by Mr. Vijay

Kant Dubey, learned counsel for the petitioners and Mr. Veer Vijay Pradhan,

learned A.P.P. appearing for the opposite party-State.

2. This criminal miscellaneous petition has 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

this matter has been heard.

3. Status report is on the record, whereby, it has been informed that on

due investigation, the Investigating Officer of the case has submitted

charge-sheet bearing no.35 of 2017 dated 15.09.2017 under Section 287,

304(A) of the Indian Penal Code against two accused persons namely (1)

Prasidha Nag, contractor of S.R. Enterprise, Jhinkpani and (2) Engineer Amit

Kumar Arya with showing lack of evidence against one accused, namely,

Dinesh Kumar Pathak, General Manager of A.C.C. Factory, Jhinkpani.

4. In view of the charge-sheet, so far as the case of petitioner no.1 is

concerned, it has become infructuous.

5. Now, this case has been pressed on behalf of petitioner no.2.

6. This petition has been filed for quashing of the entire criminal

proceeding including First Information Report of Jhinkpani P.S. Case No. 07

of 2015 dated 24.03.2015, corresponding to G.R. No. 176 of 2015,

registered for the offences under Sections 287/304A of the Indian Penal

Code.

7. The F.I.R. was registered on the fardbeyan of one Neelamber Gope,

who stated that he was working as Contractor Labour in Bauxite Crusher

machine of M/s A.C.C. Ltd. at Jhinkpani. He also stated that one Shankar

Gope was also working. On 24.03.2015, at about 15:10 hours, the crusher

machine started and about after 10 minutes, crusher machine was got stop.

As the machine got stop, the informant and Pankaj Khalko went to inspect

the same and found that the Shankar Gope was entangled between the

same. Shankar Gope was taken out and he was sent for treatment and later

on the informant got information that Shankar Gope died. He also stated

that the accident occurred due to negligence of the Company.

8. Mr. A.K. Kashyap, learned Senior counsel for the petitioner assailed

the F.I.R. on the ground that the alleged occurrence took place in the

premises of the factory of the Associated Cement Company (A.C.C.) Ltd. He

further submits that the alleged accident has occurred within the factory

premises. He also submits that when the special Act is there, the IPC will

not apply. He further submits that the case under Section 92 of the

Factories Act, 1948 is already pending against the petitioner and in light of

Sections 4 and 5 of the Cr.P.C., the case is not made out so far the Indian

Penal Code is concerned. He also submits that Section 92 of the Factories

Act clearly provides penalties in case of death, which is caused by the

accident within the factory and Section 105 of the said Act prescribed about

the cognizance of the offence. There is provision of appeal under Section

107 of the said Act. According to him, the Factories Act is having complete

provision and so far as the occurrence with regard to the factory is

concerned, it is required to be proceeded as per the said Act itself. To

buttress his arguments, he relied upon the judgment rendered by the

Hon'ble Supreme Court in the case of Sharat Babu Digumarti v.

Government (NCT of Delhi), reported in (2017) 2 SCC 18.

9. Paragraphs 31, 32 and 37 of the said judgment are quoted herein

below:

"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.

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."

10. Mr. Kashyap, learned Senior counsel for the petitioner further relied

upon the judgment rendered by this Court in the case of K.K. Sharan &

Ors. v. State of Jharkhand & another, reported in 2005 (2) East Cr C

407 (Jhr).

11. Paragraph 6 of the said judgment is quoted herein below:

"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 charge- sheeted 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."

12. Mr. Kashyap, learned Senior counsel for the petitioner also relied upon

the judgment rendered by this Court in the case of A.K. Sen Gupta @

Alok Kumar Sen v. The State of Jharkhand , reported in 2002 (2)

East Cr C 77 (Jhr).

13. Paragraph 7 of the said judgment is quoted herein below:

"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 lost their lives in course of 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 reported decision 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."

14. Mr. Veer Vijay Pradhan, learned A.P.P. appearing for the State submits

that the case has been rightly instituted under the provision of the Indian

Penal Code. He further submits that the case is not fit to be interfered by

this Court.

15. On perusal of the judgment passed in Sharat Babu Digumarti (supra),

it transpires that on conclusion, it was held that the High Court has fallen in

error that although charge has not been made out under the provisions of

Information Technology Act, yet the appellant could be proceeded under

Section 292 of the Indian Penal Code. 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

with respect to the accident, which was caused in the factory premises of