Rakesh Sinha vs The State Of Jharkhand
2023 Latest Caselaw 1439 Jhar

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No.174 of 2010

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Rakesh Sinha, son of late P.C.Sinha, Director (Technical) O.P., M/s Bharat Coking Coal Limited, resident of Koyla Nagar, P.o. Koyla Nagar, P.S. Saraidhella, District-Dhanbad .... Petitioner

-- Versus --

1.The State of Jharkhand

2.Sri P.K.Palit, Deputy Director of Mines Safety, Region No.1, Office of the Chief Inspector/Director General of Mines Safety, P.O., P.S. and District-

      Dhanbad                                         .... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Anoop Kumar Mehta, Advocate For the Resp./O.P.No.2 :- Mr. Pratyush Kumar, Advocate

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11/03.04.2023 Heard Mr. Anoop Kumar Mehta, the learned counsel

appearing for the petitioner, Mr. V.S. Sahay, the learned counsel

appearing on behalf of the respondent State and Mr. Pratyush Kumar, the

learned counsel appearing on behalf of the respondent/O.P.no.2.

This petition has been filed for quashing of the entire

criminal proceeding initiated against the petitioner in connection with

C.M.A. Case No.304 of 2009 including the order dated 27.7.2009 passed

by the learned Chief Judicial Magistrate, Dhanbad whereby the learned

Magistrate has been pleased to pass the order taking cognizance for an

offence under section 72(A) of the Mines Act, 1952 pending in the court

of learned Judicial Magistrate, 1st Class, Dhanbad.

The O.P.no.2 has lodged the complaint case alleging therein

that on 18.7.2003 based on a news published in local daily „Prabhat

Khabar‟ about occurrence of pothole in South Govindpur Colliery, an

inspection was carried out by the Deputy Director of Mines Safety to find

out the cause and circumstances leading to the potholing.

On inspection so made, it revealed that the place of pothole

occurred in 11 seam depillared in the past and that workings were

extended within 45 m of the railway acquired land and so an order under

Regulation No.105(4) of the Coal Mines Regulations, 1957 was issued to

stabilize, if required by sand stowing through bore holes drilled from

surface. The unstable workings beneath 11 seam within 45 m of railway

land subsequently a complaint was received from Railways also.

Follow up inspection dated 01.11.2003 revealed that no

work was undertaken for compliance of the office order.

Thereafter, on 3.2.2009, further follow up inspection

revealed that out of 373 nos. of bore holes required to be drilled and

82000 cum of sand to be stowed in the area under order, only 78 holes

had been drilled and 9008 cum sand only had been stowed despite

several extensions given. So management‟s failure to comply with the

order amounts to contravention of Regulation 105(4) of the Coal Mines

Regulations, 1957 constituting an offence.

Mr. Mehta, the learned counsel for the petitioner submits

that on the very first date the learned Chief Judicial Magistrate has been

pleased to take cognizance. He further submits that in view of section 18

of the Mines Act, the petitioner is neither the agent or the manager. He

submits that the petitioner joined the B.C.C.L as a Director on 1.6.2008

whereas the occurrence is alleged to take place in the year 2003. He

draws the attention of the court to section 75 of the said Act. He refers

to section 75 of the said Act and submits that the Chief Inspector of

Mines is required to file the prosecution case against any owner, agent or

manager or authorized and Inspector by general or specific order in

writing. He submits that order is not annexed with the complaint. He

draws the attention of the Court to section 72 (A) of the Act and submits

that in that section it has been stated that if regulation specified under

clauses of section 57 the prosecution can be instituted and he submits

that none of the clauses are violated and despite of that the petitioner

has been prosecuted. He further submits that the company is not made

accused whereas the petitioner who is Director of the said company has

been unnecessarily has been dragged in this case. He submits that in

view of sub rule 4 of Regulation 105 of the Coal Mines Regulation 1957

notice is required to be provided to the owner which has not been done

in the case in hand. On these grounds, he submits that there is non-

application of judicial mind and cognizance has been taken.

Per contra, Mr. Pratyush Kumar, the learned counsel

appearing on behalf of the respondent/O.P.no.2 submits that the offence

in nature is continuing offence and in that view of the matter the Court is

required to peruse section 79 of the Mines Act, 1952. By way of relying

on this section, particularly, explanation, he submits that when offence is

continuing in nature, the case will continue and at this stage, the High

Court may not interfere under section 482 Cr.P.C and to buttress his

argument he relied in the case of "Union of India v. A.B.Shah and

Others", reported in (1996) 8 SCC 540. He further draws the attention of

the Court to section 76 of the Act and submits that where the owner of

the mines is a firm or other association of individuals or company, the

owner is required to be prosecuted. He submits by way of referring

section 76 of the Act that where the owner of the mines is a company,

all or any of the Directors thereof, who are managing the affairs of the

mines may be prosecuted. He submits that in view of section 76 of the

Act read with regulation 105 of the Coal Mines Regulations, 1957, the

petitioner has been rightly prosecuted by the Inspector. On these

grounds, he submits that the entire criminal proceeding is not required to

be quashed by this Court at this stage. He submits that appropriate order

of sanction is there for filing the complaint. He submits that at this stage,

the High Court may not interfere under section 482 of the Cr.P.C.

In view of the submission of the learned counsel for the

parties, the Court has gone through the materials on record and finds

that the allegations are of the year 2003 however the complaint has been

lodged in the year 2009. It further transpires that this petitioner was the

Director of the B.C.C.L Company and he joined that company on

1.6.2008. Section 76 of the Act on which much emphasis has been

placed by the learned counsel for the O.P.no.2, Regulation 105 of the

said Regulations speaks as under:

"105. Working under railways and road, etc. (1) No workings shall be made and no work of extraction or reduction of pillars shall be conducted at, or extended to, any point within 45 meters of any railway, or of any public works in respect of which this regulation is applicable by reason by any general or special order of the Central Government, or of any public road or building or of other permanent structure not belonging to the owner of the mine, without the prior permission in writing of the Chief Inspector and subject to such condition as he may specify therein.

(2) Every application for permission under sub-regulation (1) shall specify the position of the workings of the mine in relation to the railways or public road or works or building or structure concerned, the manner in which it is proposed to carry out the intended operations and the limits to which it is proposed to carry out the said operations; and shall be accompanied by two copies of a plan showing the existing and the intended mining operations in so far as they affect the Railway or public road or works or building or structure concerned. A copy of the application shall also be sent in the case of a railway to the railway administration concerned, and the case of any public works as aforesaid to such authority as the Central Government may be general or special order direct.

(3) Notwithstanding anything contained in the regulations, the stability of such railways, road works, building or structure shall not be endangered until it has been dismantle, diverted or vacated, as the case may be.

(4) Where the stability of such railway, road, works, building or structure has been endangered due to any mining operations the Chief Inspector may be an order in writing require the owner to construct in the mine below ground or on the surface such protective works within such time as he may specify in the order."

For correct appreciation of the Regulation 105 of the Coal

Mines Regulations 1957, the Court is also required to look into section 76

of the Mines Act, which is quoted hereinbelow:

"[76. Determination of owner in certain cases.-- Where the owner of a mine is a firm or other association of individuals, all, or any of the partners or members thereof or

where the owner of a mine is a company, all or any of the directors thereof or where the owner of a mine is a Government or any local authority, all or any of the officers or persons authorised by such Government or local authority, as the case may be, to manage the affairs of the mine, may be prosecuted and punished under this Act for any offence for which the owner of a mine is punishable:

[Provided that where a firm, association or company has given notice in writing to the Chief Inspector that it has nominated,--(a) in the case of a firm, any of its partners or managers;(b) in the case of an association, any of its members or managers;(c) in the case of a company, any of its directors or managers,

who is resident, in each case in any place to which this Act extends and who is in each case either in fact in charge of the management of, or holds the largest number of shares in such firm, association or company, to assume the responsibility of the owner of the mine for the purposes of this Act, such partner, member, director or manager, as the case may be, shall, so long as he continues to so reside and be in charge or hold the largest number of shares as aforesaid, be deemed to be the owner of the mine for the purposes of this Act unless a notice in writing cancelling his nomination or stating that he has ceased to be a partner, member, director or manager, as the case may be, is received by the Chief Inspector.

Explanation.--Where a firm, association or company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this proviso in relation to different establishments or branches or units and the person so nominated shall, with respect only to the establishment, branch or unit in relation to which he has been nominated, be deemed to be the owner of the mine.]"

Looking into the section 76 of the said Act, it is crystal clear

that the proviso speaks of that notice is required to be issued to the firm,

association or the company. Sub rule (4) of Regulation 105 of the said

Regulations speaks of that the Chief Inspector is required by order the

owner to construct. If joint reading of section 76 of the Act and sub-rule

(4) of Regulation 105 of the said Regulation, it appears that the owner is

required to be noticed in writing. Admittedly, the notice under sub-rule

(4) of Regulation 105 of the said Regulation is addressed to the agent,

which has been admitted in paragraph no.25 of the counter affidavit.

Thus, it is crystal clear that notice to the owner is not there and once

statute speaks of to do something and in that way the same is required

to be followed which has not been done in the case in hand. Further

section 72(A) of the Act says that for violation of clauses of section 57

the case can be registered whereas punishment has been prescribed and

looking to section 57 of the said Act, it transpires that none of the clauses

are said to be violated by the petitioner. Further, Section 76 of the Act

speaks of that if the company is a violator the owner can be prosecuted

and admittedly, that notice is not there to the owner and the company is

not made party and if the officer of the company is sought to be

prosecuted the company is required to be one of the accused which is

lacking in the case in hand. A reference may be made to the case of

"Sunil Bharti Mittal v. Central Bureau of Investigation" (2015) 4

SCC 609, the Hon‟ble Supreme Court in paragraph nos.42 to 44 has held

as under:

"42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.

43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.

44. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada, the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of "alter ego", was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company."

The judgment relied by Mr. Pratyush Kumar, the learned

counsel for the O.P.No.2 is not in dispute. In that case section 79 of the

said Act was considered by the Hon‟ble Supreme Court and it was held

that if the offence is continuing in nature, the case is required to be

lodged however in the case in hand that ground has not been argued on

behalf of the petitioner and the petition succeeds in other grounds itself

as discussed hereinabove. Further looking to the order taking cognizance

it transpires that the word „cognizance‟ is filled up in hand writing in a

blank space which further suggest that there is non-application of judicial

mind.

In view of the above facts, reasons and analysis, entire

criminal proceeding initiated against the petitioner in connection with

C.M.A. Case No.304 of 2009, pending in the court of learned Judicial

Magistrate, 1st Class, Dhanbad is quashed.

Cr.M.P. No.174 of 2010 is allowed and disposed of.

Pending petition, if any, also stands disposed of.

( Sanjay Kumar Dwivedi, J.)

SI/,