Ajit Kumar Gulati vs The State Of Jharkhand
2023 Latest Caselaw 1249 Jhar

       IN     THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No. 1128 of 2013
       Ajit Kumar Gulati                                 .....   ...   Petitioner
                                    Versus
       1. The State of Jharkhand.
       2. Haldhar Prasad Choubey                         .....   ...   Opposite Parties
                                        with
                             Cr.M.P. No. 2813 of 2012
       Shashi Kumar                                      .....   ...   Petitioner
                                    Versus
      1. The State of Jharkhand.
      2. Haldhar Prasad Choubey                       ..... ...      Opposite Parties
                                --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

------

For the Petitioners : Mr. A.K. Mehta, Advocate.

                                :        Mr. Manish Kumar, Advocate.
      For the State             :        Mrs. Lily Sahay, A.P.P.
                                :        Mr. Achinto Sen, A.P.P.
      For the O.P. No. 2        :        Mr. Vinod Kumar Jha, Advocate.
                                ------

07/ 22.03.2023 In both the cases, common facts, FIR as well as order taking cognizance are under challenge, that's why both the petitions have been heard together with the consent of the parties.

2. Heard Mr. A.K. Mehta, learned counsel appearing for the petitioner in both Cases, Mrs. Lily Sahay, learned A.P.P. appearing for the State in Cr.M.P. No. 1128 of 2013 and Mr. Achinto Sen, learned A.P.P. for the State in Cr.M.P. No. 2813 of 2012 and Mr. Vinod Kumar Jha, learned counsel appearing for the O.P. No. 2 in Cr.M.P. No. 2813 of 2012. In Cr.M.P. No. 1128 of 2013, notices have been validly served, in spite of that O.P. No. 2 has not appeared, however, O.P. No. 2 is similar in both the cases and in the second case, the O.P. No. 2 has appeared.

3. These petitions have been filed for quashing of the entire criminal proceedings including the order taking cognizance dated 18.10.2010, by which, cognizance for the offences under Sections 286, 427, 436, 120-B and 34 of IPC has been taken against the petitioners, in connection with Jharia P.S. Case No. 310 of 1996 corresponding to G.R. No. 3491 of 1996, pending in the court of learned Judicial Magistrate, Dhanbad.

4. That the prosecution case arises out of a written complaint being Complaint Petition Case No. 793 / 1996 instituted on 12.11.1996 by Haldhar Prasad Choubey against 6 accused persons including the petitioner, who at the relevant time was the General Manager, Area No. VIII, Kustore, in relation to an incident alleged to have taken

place at about 8.00 PM on 27.10.1996.

That the case of the complainant opposite party No.2 is that on account of illegal mining of coal underground fire has been spreading around Jharia township, endangering the lives of citizen. It is alleged that the accused persons have been carrying out heavy blasting in Bhagatdih Colliery since 1991 causing serious danger to the lives and property. It has also been alleged that on 27.10.1996 at about 8 P.M., a huge explosion took place causing damage to the property, estimated value of which is about Rs. 50 lakhs.

5. Mr. Mehta, learned counsel appearing for the petitioners in both the cases submits that the said complaint was sent by the learned Magistrate under Section 156(3) of the Cr.P.C. to the police for registration of the FIR and investigation and pursuant thereto the investigation was conducted and chargesheet has been submitted, whereby the petitioners along with others have been sent for trial. He submits that the petitioner Ajit Kumar Gulati in Cr.M.P. No. 1128 of 2013, at the relevant time was the Chairman-cum-Managing Director of BCCL and superannuated from service about 15 years back and proceeded to New Delhi. The petitioner Shashi Kumar in Cr.M.P. No. 2813 of 2012 was General Manager and transferred to different places and ultimately he became the Chairman of Coal India Limited and after his retirement he had no knowledge or information about the progress of the case, however, later on he come to know about the investigation of the case and also about the pendency of the case. He further submits that in relation to the self same occurrence on 27.10.1996, the Director, Mines Safety, Dhanbad in the office of the Director General, Mines Safety had taken up the matter for enquiry and examine as to whether there had been any violation under the Mines Act, 1952 and the Coal Mines Regulation, 1957 and thereafter by a letter dated 06.12.1996 of the Director, Mines Safety issued necessary directions to the colliery for taking protective measures so that the safety of men and the property of the locality is adequately addressed. He further submits in view of such directions, no action was taken by the Director, Mines Safety against the company as well as the petitioners either under the Coal Mines Regulation, 1957 or even the Mines Act 1952 and the present case has been lodged. He further submits that there is no specific allegation so far as these petitioners are concerned in the contents of the FIR. He draws the attention of the court to Annexure-3 of the petition and

submits that in identical situation, the entire criminal proceeding was quashed by a co-ordinate Bench in Cr.M.P. No. 69 of 2008 by order dated 23.11.2011. On these grounds, he submits that the entire criminal proceedings including the order taking cognizance may kindly be quashed so far as these two petitioners are concerned.

6. On the other hand Mrs. Lily Sahay, and Mr. Achinto Sen, learned A.P.Ps. appearing in respective cases for the State jointly submits that the ingredients of IPC are attracted and in that view of the matter chargesheet has been submitted and the learned court has rightly taken the cognizance against the petitioners and there is no illegality and this court may not interfere in these matters at this stage.

7. Mr. Vinod Kumar Jha, learned counsel appearing for the O.P. No. 2 in Cr.M.P. No. 2813 of 2012 submits that there is no illegality and criminality is made out that's why the learned court has taken the cognizance. As such, he submits that these petitions are fit to be dismissed.

8. In view of such submissions of learned counsel appearing for the parties the court has gone through the contents of the FIR as well as the order taking cognizance. Looking into the address of the accused persons disclosed in the complaint petition, it appears that the Chairman- cum-Managing Director of M/s BCCL has been made accused and the accused No. 2 is the General Manager, Store Area, BCCL. Thus, it is crystal clear that it is not disclosed, who was holding the post of Chairman-cum-Managing Director of M/s BCCL at the time of alleged occurrence, because the name of Chairman-cum-Managing Director is not disclosed therein and the case has been registered against the Chairman- cum-Managing Director of the said company. Admittedly, for the alleged occurrence, the case was registered by the Director General of Mines Safety and enquiry was made and certain direction was issued, however, they have chosen not to proceed against the company as well as the petitioners. The case has been investigated and chargesheet has been submitted under the Penal Sections of IPC and in the alleged occurrence, appears to be lodged would fall within the mischief of the provision as enshrined in Section 72-C of the Mines Act, 1952, which is a special legislation and will have overriding effect upon the provision of the General Law and, therefore, any prosecution under the General law is not permissible and hence, the order taking cognizance is fit to be interfered with, in view of the judgment in the case of Binod Kumar Das & Ors.

Versus State of Jharkhand & Anr., reported in (2008) 1 JCR 601 (Jhr), where in paras-6 and 8, this Court has held as follows:-

"6. I do find substance in the submission made on behalf of the petitioners. Section 4 of the Criminal Procedure Code, 1973 deals with the matter regarding investigation and enquiry of the case failing under the Indian Penal Code or any special Act which reads as under:

Trial of offence under the Indian Penal Code and other laws-

(1) All offences under the Indian Penal Code (46 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

8. Having taken notice of the provision of Section 4 of the Code of Criminal Procedure it would be pertinent to take notice of Section 92 of the Factories Act so as to be ascertained as to whether allegation made in the First Information Report is within the ambit of Section 92 of the Factories Act. Section 92 of the Factories Act reads as follows: General penalty for offences--Save as is otherwise expressly provided in this Act and subjected to the provisions of Section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to (two years or with fine which may extend to (one lakh rupees) or with both, and if the contravention is continued after conviction, with a further fine which may extend to (one thousand rupees) for each day on which the contravention is so continued: Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under Section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than (twenty five thousand rupees) in the case of an accident causing death, and (five thousand rupees) in the case of an accident causing serious bodily injury."

9. Reference may further be made to the case of Rabindra

Agarwal Versus State of Jharkhand & Anr., reported in [2010(2) JCR 667 (Jhr)], wherein this court in para-10 held as follows:-

10. It was pointed out that when similar question arose before this Court for consideration in a case of Binod Kumar Das and another vs. State of Jharkhand and another [2008(1) JCR 601 (Jhr)], this Court taking into consideration the provision as contained in Section 4 of the Code of Criminal Procedure did hold that prosecution under the general law on the allegation which falls within the province of the special legislation is not permissible. Similar is the case here as the allegation, upon which first information report was lodged certainly falls within the ambit of Section 92 of the Factories Act and hence, any prosecution under the general law that is to say under the Indian Penal Code would be quite bad.

10. Further looking into Section 4 of the Cr.P.C., which deals with the matter regarding investigation and enquiry of the case falling under the Indian Penal Code or any Special Act which reads as follows:-

" Trial of offence under the Indian Penal Code and other laws -

(1). All offences under the Indian Penal Code (46 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

(2). All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." Thus, sub-Section (1) of Section 4 of the Code provides that in absence of any specific provision to the contrary nothing in the code shall affect any special or local law for the time being in force. However, the conjoint effect of that provision and sub-Section (2) of Section 4 would be as follows: "1. That all offences, whether under the penal code or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code.

2. This rule is subject to qualification that in respect of offences under other laws that is to say, under laws other than Indian Penal Code, if there be an enactment regulating the manner of investigation, inquiring into, trying or otherwise dealing with such offences, such enactment will prevail over the code.

3. The provisions of special or local law will prevail over the provisions contained in the Code unless there is specific provisions to the contrary. "

11. In view of the above provisions of Section 4 of the Cr.P.C., it would be pertinent to take notice of Section 72-C(1)(a) so as to be ascertained as to whether the allegation made in the first information report fall within the ambit of Section 72-C(1)(a) of the Mines Act. The said provisions reads as follows:-

72( 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 (1-A) or sub- section (2) or sub-section (3) of section 22 [or under sub- section (2) of section 22-A], 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. "

12. From reading of the said provision, it is crystal clear that if there is loss of life on account of contravention of any of the provisions of the Act/Rules or Regulation, there would be application of Section 72- C(1)(a) of the Act.

13. Considering that the Director General, Mines Safety has already dropped the proceeding and chosen not to proceed against the company as well as the petitioners and the allegations are in contravention of the provisions of the Mines Act/Rules or Regulation and therefore, there is no iota of doubt that the allegation pertains to the provisions as contained in Section 72-C(1)(a) of the Act and in that situation, the prosecution under the General Law is never permissible in view of the provisions as contained in Section 75 of the Mines Act, which reads as follows:-

"75.Prosecution of owner, agent or manager - No prosecution shall be instituted against any owner, agent or manager for any offence under this Act except at the instance of the Chief Inspector or of the District Magistrate or of an Inspector authorized in this behalf by general or special order in writing by the Chief Inspector."

14. Thus, any prosecution for contravention of the provision of the Mines Act/ Rule/Regulation needs to be instituted in accordance with the aforesaid provision. In other words, it can be said that launching of the prosecution for the matter falling under special legislation is not permissible

to be gone into under the General Law. The case of the petitioners are fully covered in the light of the judgment of this Court in the case of Binod Kumar Das & Anr. (Supra) and also in the case of Rabindra Agarwal (Supra).

15. Accordingly, the entire criminal proceedings including the order taking cognizance dated 18.10.2010, by which, cognizance for the offences under Sections 286, 427, 436, 120-B and 34 of IPC has been taken against the petitioners, in connection with Jharia P.S. Case No. 310 of 1996 corresponding to G.R. No. 3491 of 1996, pending in the court of learned Judicial Magistrate, Dhanbad, are hereby, quashed so far as these petitioners are concerned.

16. It is made clear that these petitions are allowed so far as these two petitioners are concerned. The other accused persons are also there and therefore against them the proceedings are not being interfered by this court.

17. Both these petitions are allowed and disposed of.

(Sanjay Kumar Dwivedi, J.) Amitesh/-