D.K. Basu @ Dilip Kumar Basu vs The State Of Jharkhand
2022 Latest Caselaw 3142 Jhar

                                   1        Cr. M.P. No.2735 of 2012

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr. M.P. No.2735 of 2012

     D.K. Basu @ Dilip Kumar Basu             ..... Petitioner
                            Versus
     1. The State of Jharkhand
     2. Sri U. Tah, Deputy Director of Mines (Safety),
        Region No.1, Dhanbad                  .... Opposite Parties

           CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR

     For the Petitioner            :     Mr. Anoop Kr. Mehta, Advocate
     For the State                 :     Mr. Jitendra Pandey, APP
     For the O.P. No.2             :     Mr. Sunil Kumar, Advocate
                                 -----

8/11.08.2022 Mr. Anoop Kr. Mehta, learned counsel on behalf of the petitioner, Mr. Sunil Kumar, learned Senior Panel Counsel of Central Government and also Mr. Jitendra Pandey, on behalf of the state are present.

2. Heard the parties.

3. It is submitted on behalf of the petitioner that the present Cr.M.P. has been filed for quashing the entire criminal proceeding against the petitioner including the order taking cognizance dated 18.05. 2007, whereby and where under the learned Chief Judicial Magistrate, Dhanbad has taken cognizance for the offences punishable under sections 72A, 72C (i) (a) and Section 72C (i) (b) of the Mines Act, 1952 against the petitioner and also against the order dated 13.09.2010 passed by learned Judicial Magistrate, Dhanbad in C.M.A. Case No. 129 of 2007, by which the prayer of the complainant to withdraw the case has been rejected.

4. Learned counsel on behalf of the petitioner has pointed out that the O.P. No.2, the Deputy Director Mines (Safety), Region No.1, Dhanbad had filed a written complaint before the court of concerned Chief Judicial Magistrate, Dhanbad alleging that they had received the information about an accident held on 20.11.2006 at Sendra Bansjora Colliery resulting in the death of one Amit Kumar Singh, driver, working as watchman and serious accident of Sri Dhiren Mahto, General Mazdoor / Dumping Munshi. It has further been

alleged that on enquiry and inspection, it was revealed that while a Dumper was being reversed to unload over-burden in a dump area, in the night hours, two persons, one working as Dumping Munshi and other a driver working as watchman were ran over by the Dumper, resulting in serious injury and an offence punishable under section 72A, 72C (i) (a) and Section 72C (i) (b) of the Mines Act, 1952 were found to have been committed by the petitioner and accordingly the case was instituted, under which the impugned orders had been passed, which are under challenge.

5. On the other hand, learned counsel appearing on behalf of the O.P. No.2 Mr. Sunil Kumar submitted that the counter affidavit has been filed in this case and further submitted that this petitioner, being the Director of the Company is not liable for the offence, under which the cognizance has been taken and relying upon order passed by this Court in Cr.M.P No. 1415 of 2007, in which the application filed by a similarly situated co-accused persons Mr. Ashok Kumar Singh, who was General Manager of the company, has been allowed and the cognizance of the offence taken against him has been quashed by order dated 20.03.2012. Further it has been stated that the said order dated 20.03.2012 passed by this court in Cr.M.P. No. 1415 of 2007 with respect to the co-accused Ashok Kumar Singh has been passed relying upon the Judgment passed by the Hon'ble Supreme Court in S. K. Alagh Vs. State of Uttar Pradesh and Ors. reported in (2008)5 S.C.C. 662 and then the order has been passed.

6. Having heard learned counsel for the parties, perused the record of the case.

7. In the present case, it has been pointed out that the petitioner was the Director (Technical Operation) of the Company and he has also no role in the commission of the offence and neither he is Agent, nor the Owner nor the Manager of the colliery and he was also not directly responsible for the contravention of any regulation and he can be made accused by invoking the principal of vicarious liability. There are specific provisions under sections 18(4) of the Mines Act,

under which, it has categorized the person, who can be held vicarious liable for the offence committed under sections 72A, 72C of the Mines Act. Further Section 18 of the Mines Act, 1952 also lays down duties and responsibilities of Owners, Agents and Managers. The provision of Section 18(1) & 18 (4) reads as follows:

"18. Duties and Responsibilities of Owners, Agents and Mangers-

(1) The Owner and Agent of every Mines shall each be responsible for making financial and other provisions and for taking such other steps as may be necessary for compliance with the provisions of this Act and the Regulations, Rules, By-laws and Orders made there under.

Further Sub-Section 4 of Section 18 reads as under: "18(4) Subject to the provisions of sub-sections (1), (2) and (3), the owner, agent and manager of every mine shall each be responsible to see that all operations carried on in connection with the mine are conducted in accordance with the provisions of this Act and of the regulations, rules, bye-laws and orders made thereunder."

From the aforesaid provision, it does appear that the Owner, Agent and the Manager can only be proceeded with the prosecution under the Mines Act vicariously. The aforesaid provision is silent over the prosecution of Deemed Agent and from the perusal of complaint it is seemingly found that there was no any latches on the part of the petitioner in making Financial Arrangement or deployment of sufficient statutory personnel, hence the petitioner cannot be held responsible u/s 18(4) of the Mines Act, 1952.

Some relevant para of order dated 20.03.2012 passed by this Court in Cr.M.P. No. 1415 of 2007 with respect to the co-accused Ashok Kumar Singh is as under-

"Learned counsel in support of his submission has referred to the provision as contained in sub-section (4) of Section 18 of Mines Act. By preferring the said provision, learned counsel submits that only the Owner, Agent and the Manager can be held responsible vicariously for any commission of the offence under the Mines Act.

Since the Deemed Agent is not there under Sub-Section (4) of

Section 18 of the Mines Act, he cannot be prosecuted in absence of any specific allegation relating to contravention of the provision of Act or Regulation and as such, the prosecution of the petitioner can be held to be quite illegal.

As against this, Mr. Khan, learned counsel appearing for the opposite party No.2 submits that the petitioner being the Chief General Manager of the Colliery would be responsible for any omission or commission, which resulted into contravention of the provision of the regulation and thereby he can easily be prosecuted when it was found that on account of non-observance of regulation one person sustained injury and died and other sustained injuries at the time of unloading of coal in Sendra Bansjora Colliery and, therefore, the submission advance on behalf of the petitioner is fit to be rejected.

Having heard learned counsel for the parties, it does appears that the petitioner along with others are being prosecuted for contravention of the provision of the regulation punishable under Sections 72A, 72C(1)(a) and 72 C (1)(b) of the Mines Act, which provisions read as under.

"72A. Special provision for contravention of certain regulations.--Whoever contravenes any provision of any regulation or of any bye-law or of any order made thereunder, relating to matters specified in clauses (d), (i), (m), (n), (o), (p), (r), (s), and (u) of section 57 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.

xxxxxx 72C. Special provision for contravention of law with dangerous results.--(1) Whoever contravenes any provision of this Act or of any regulation, rule or bye-law or of any order made thereunder [other than an order made under sub-section (1A) or sub- section (2) or sub-section (3) of section 22] or under sub-section (2) of section 22A, shall be punishable--

(a) if such contravention results in loss of life, with imprisonment which may extend to two years, or with fine which may extend to five thousand rupees, or with both; or

(b) if such contravention results in serious bodily injury, with imprisonment which may extend to one year, or with fine which may extend to three thousand rupees, or with both; or

(c) if such contravention otherwise causes injury or danger to persons employed in the mine or other persons in or about the mine, with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both:

Provided that in the absence of special and adequate reasons to the contrary to be recorded in writing in the judgment of the court, such fine, in the case of a contravention referred to in clause (a), shall not be less than three thousand rupees."

From perusal of the aforesaid provision, it does appear that only those persons would be responsible for commission of the offence, whoever, as has been mentioned in the three sections, contravenes any of the provision of regulation or of any bye-law.

It be noted that the petitioner has never been alleged specifically to have contravened any provision of the regulation or bye law rather he is being prosecuted as he happened to be the Chief General Manager and thereby according to the prosecution, he is vicariously liable for commission of the offence but the stand taken on behalf of the opposite party No.2, seems to be without substance. In this regard, I would be referring to sub-section (4) of Section 18 of the Mines Act, which speaks about the vicarious lability. The said provision reads as follows:-

"18(4) Subject to the provisions of sub-sections (1), (2) and (3), the owner, agent and manager of every mine shall each be responsible to see that all operations carried on in connection with the mine are conducted in accordance with the provisions of this Act and of the regulations, rules, bye-laws and orders made thereunder."

From the aforesaid provision, it does appear that the Owner, Agent and the Manager can be proceeded with the prosecution under the Mines Act vicariously. The aforesaid provision is silent over the

prosecution of Deemed Agent. Since the Deemed Agent has not been mentioned in the aforesaid provision, he, in my view cannot be prosecuted vicariously.

In this respect, it be recorded that the Penal Code, save and except some provision specifically providing therefor does not contemplate any vicarious lability on the part of a party who is not charged directly for commission of an offence but when a statute contemplates creation of such a legal fiction, it provides specifically therefore.

Here in the instant case, as noted hereinabove, sub-Section (4) of Section 18 of the Mines Act fixes vicarious lability only upon three person, Owner, Agent and the Manager and therefore, in absence of any specific allegation relating to contravention of the provisions of bye laws or the regulations or even the Act, one cannot be proceeded with under the concept of vicarious lability. In this regard, I may refer to a decision rendered in a case of S.K. Alagh Vs. State of Uttar Pradesh and other (2008) 5 SCC 662."

8. In view of the aforesaid observation as held by this Court in Cr.M.P. No.1415 of 2007, it is found that the case of this petitioner stands on similar footing and therefore the prosecution against the petitioner is also illegal and fit to be set aside. In the entire complaint there was no allegation that there was deficiency in supervision of operation of mines rather the competent persons are said to have been appointed and they have also been accused in the present case which are not denied by O.P.No.2. It is also found that during pendency of the present petition, the O.P.No.2 had filed an application for withdrawing the Complaint case pending vide C.M.A. Case No.129/2007 but the concerned court below rejected the payer of withdrawal vide order dated 13.09.2010 which is against the facts of the case and not tenable in the eyes of law and thus amounting to the abuse of the process of law.

9. Accordingly the order dated 18.5.2007 passed by the Chief Judicial Magistrate, Dhanbad in CMA Case No.129 of 2007 against this petitioner, under which cognizance for the offence under section 72A,

72C (i) (a) and Section 72C (i) (b) of the Mines Act, 1952 was taken, and order dated 13.09.2010 passed by the learned Judicial Magistrate, Dhanbad in C.M.A. Case No. 129/2007 is hereby quashed.

10. In the result, this Cr.M.P. filed by the petitioner is allowed.

(Navneet Kumar, J.) R.Kumar