Andhra HC (Pre-Telangana)
State vs B.M.N. Rao And Ors. on 18 August, 1997
Equivalent citations: 1998(4)ALD13, 1998(2)ALD(CRI)154
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
JUDGMENT
1. The Order in Crl M.P.No.430/94 in STC No. 143/93 on the file of Additional Judicial Magistrate of I Class, Razole, dated 12-4-1994 dropping the proceedings against the respondents-accused is assailed by the complainant in this appeal.
2. The facts in brief are as under : The Inspector of Mines having been appointed by the Central Government purportedly under Section 5(1) of the Mines Act, 1952, filed a complaint against the respondents herein alleging that there was a blow out in the oil well at Komarada-I E-1400-17 Rig., on 20-3-1993 at about 10.30 a.m. that it was inspected by Sri A.K. Megharaj, Deputy Director of Mines Safety (also an Inspector of Mines) on 3rd, 4th 23rd and 24th April, 1993, and Sri S. Venkataraman, Deputy Director of Mines Safety (Mechanical) (also an Inspector of Mines) on 3rd April, 1993 and that the above inspections revealed the contravention of Regulation 44 of the Oil and Mines Regulations, 1984. The relevant portion of the report is extracted below--
"In contravention of Regulation 44 of the Oil Mines Regulations, 1984, the accused persons did not subject the blow out preventer assembly including its control valves, connection pipes and spacers etc.... tested to the rated pressure of the assembly or the rated pressure of the casting pipe on which it is mounted, whichever is less, soon after its initial installation, re-installation, following repair and before drilling out cement plug from the string of casing."
3. On that basis, the complainant alleged that the respondents herein have failed in their duties as envisaged under Section 18 of the Mines Act, 1952 and thereby committed an offence punishable under Section 73 of the Mines Act, 1952.
4. The complaint was taken on file by the learned Magistrate as STC.No. 143/93 and process was issued to the respondents. They entered appearance and filed a petition Crl.M.P.No.430/94 purportedly under Sections 255 and 482 Cr.P.C. for dropping the proceedings on two grounds namely (1) that they are public servants within the meaning of Section 21 IPC and that sanction for prosecution under Section 197 Cr.P.C. was not obtained and (2) that the respondents have acted in 'good faith' in discharging their official duties and hence Section 28 of the Mines Act is a bar. The learned Magistrate held that the respondents are not public servants inasmuch as they are in the service of Oil and Natural Gas Commission which is a non-governmental autonomous body and hence no sanction under Section 197 Cr.P.C. is required. He has, however, accepted the second ground and held that the acts attributed to the respondents were performed in good faith as defined in the General Clauses Act. Thus, the petition filed by them has been allowed.
5. Since the above order is passed under Section 255 Cr.P.C. and tantamounts to an order of acquittal, this appeal is preferred by the complainant.
6. The learned Standing Counsel for the Central Government appearing for the appellant strenuously contended that the learned Magistrate should not have thrown out the complaint at the threshold and that an order of acquittal as contemplated by Section 255 Cr.P.C. without recording the evidence of prosecution and following the procedure laid down in Chapter XX of Cr.P.C. is illegal and liable to be set aside. He filed a copy of the enquiry report submitted by Sri Ashok Kumar Megharaj, Deputy Director of Mines Safety and argued that on the recommendations of the above enquiry officer, the complaint was filed. He urged that the impugned order may be set aside and the complaint may be remitted to the learned Magistrate for disposal in accordance with law.
7. Sri K. Venkata Rao, learned Counsel for the respondents on the other hand contended that it is open to the Magistrate to look into the allegations in the complaint and to satisfy himself whether the offence alleged is made out or not and to drop the proceedings at any stage if no offence is made out. He relied on K.K. Mathew v. State of Kerala, . He has taken me through the entire record and also Section 28 of Oil and Natural Gas Commission Act, and argued that the acts attributed were performed in utmost good faith as defined in the General Clauses Act and which fells within the ambit of Section 28 of Oil and Natural Gas Commission Act, and hence no offence is made out against them, and the learned Magistrate has rightly dropped the proceedings in view of State of U.P. v. R.K. Srivastava, . Dilating further on this aspect he pointed out that no specific accusation is made against any of the respondents that each of them had committed a specified act or omission while performing his duty and that taking the allegations in the complaint on their face value, the learned Magistrate has passed the impugned order and hence there is no illegality or irregularity committed by the learned Magistrate.
8. It is true that the complaint has been thrown out after the appearance of the respondents pursuant to the summons issued by the learned Magistrate and before recording the evidence of the prosecution. The learned Counsel for the appellant has drawn by attention to Sections 251 to 255 Cr.P.C., namely Chapter XX Cr.P.C., relating to the procedure in summons case. It is no doubt true that Section 255 C.P.C. contemplates an order of acquittal after following the procedure laid down in Sections 251 to 254 Cr.P.C. but the respondents filed Crl.M.P.No.430/94 not only invoking Section 255 Cr.P.C. but also Section 482 Cr.P.C. raising two technical grounds set out above. The question is whether the learned Magistrate committed any illegality in entertaining such a petition. In supra (1) it is held, "The High Court did not examine whether the complainant has or has not made out a case against the Chief Editor. The High Court rested its conclusion solely on the procedural requirements of the trial of a summons case. It has been pointed out that in any private complaint triable as a summons case the Magistrate, after taking cognizance of the offence and issuing process, has no jurisdiction to drop proceedings against the accused. He is bound to proceed under Chapter XX of the Code of Criminal Procedure when the accused enters appearance. He will have to state the particulars of the offence and record the plea of the accused. When the accused pleads not guilty, he will have to hear the prosecution and take all such evidence produced in support of the prosecution. Then he will have to hear the accused and take all such evidence produced in support of the defence. The High Court went on to state that the question of conviction or acquittal will arise only after recording evidence of the parties. There is no question of discharging the accused at an intermediate stage. There is no provision in the Code for dropping the proceedings against any accused. So stating, the High Court has directed the Magistrate to proceed with the trial of all the accused.
The High Court seems to be too technical in this regard. If one reads carefully the provisions relating to trial of summons cases, the power to drop proceedings against the accused cannot be denied to the Magistrate. Section 204 of the Code indicates that the proceedings before the Magistrate commences upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when There is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused.
It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused,.
9. This case is directly covered by the above judgment of the Supreme Court and hence there is no merit in the contention of the learned Counsel for the appellant in this regard.
10. I shall now advert to the allegations made in the complaint and examine whether any offence is made out against the respondents or not. It is noteworthy that the report of the Deputy Director of Mines Safety extracted supra is made the basis of this complaint. The allegations on that basis are as under :
"Thus, the Agent, Manager and Installation Manager have failed in their duties as envisaged under Section 18 of the Mines Act, 1952, Regulation 19 and Regulation 20 of the D.M.R. 1984 read with Section 18 of the Mines Act, 1952 respectively."
11. It would be convenient to understand the above allegation by taking an instant look at Section 18 of the Mines Act.
18. Duties and responsibilities of owners, agents and managers:- (1) The owner and agent of every mine 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, bye-laws and orders made thereunder.
(2) The responsibility in respect of matters provided for in the rules made under clauses (e) and (p) of Section 58 shall be exclusively carried out by the owner or agent of the mines and by such person other than the manager whom the owner or agent may appoint for securing compliance with the aforesaid provisions.
(3) If the carrying out of any instructions given under sub-section (2) or given otherwise than through the manager sub-section (3) of Section 17 results in the contravention of the Act or of the regulations, rules, bye-laws or orders made thereunder, every person giving such instructions shall also be liable for the contravention of the provisions concerned.
(4) Subject to the provisions of subsections (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 order made thereunder.
(5) In the event of any contravention by any person whosoever of any of the provisions of this Act or of the regulations, rules, bye-laws or orders made thereunder except those which specifically require any person to do any act or tiling or prohibit any persons doing an act or thing, besides the person who contravenes, each of the following persons shall be deemed to be guilty of such contravention unless he proves that he had used the due diligence to secure compliance with the provisions and has taken reasonable means to prevent such contravention:
(i)the official or officials appointed to preform duties of supervision in respect of the provisions contravened;
(ii) the manager of the mine;
(iii) the person appointed, if any, to carry out the responsibility under sub-section (2);
Provided that any of the persons aforesaid may not be proceeded against if it appears on inquiry and investigation, that he is not prima facie liable.
(6) It shall not be a defence in any proceedings brought against the owner or agent of a mine under this section that the manager and other officials have been appointed in accordance with the provisions of this Act or that a person to carry the responsibility under sub-section (2) has been appointed."
12. I carefully perused the report of the Deputy Director of Mines Safety as well as Section 18 extracted above. It is noteworthy tliat the duties and responsibilities of owners, agents and managers are postulated therein in a comprehensive form. The allegation is that the respondents herein have failed in their duties but it is not specifically alleged as to what duty it was and what responsibility of the respondents was infracted. While so, the report of the Deputy Director of Mines Safety, however, disclosed that the tests of blow out preventer assembly were not conducted as required by Regulation 44 of Oil Mines Regulations, 1984. If that is the case of the prosecution, nothing prevented the complainant from making such an allegation in the complaint. Be it noted that the report of the Deputy Director of Mines Safety has not been filed along with the complaint and no opportunity was given to the learned Magistrate to have a complete view of the matter. Hence, he cannot be blamed for these omissions. Be that as it may.
13. The prosecution case boils down to the contravention of Regulation 44 of the Oil Mines Regulations 1984. In such a case, it was incumbent upon the complainant to furnish all the material particulars and file the relevant record contemplated by the above Regulation starting from day-one of the commencement of the drilling operations in question. It was also necessary to indicate in the complaint as to how the entries in that record were going to be proved and how the commissions and omissions on the part of the respondents constituted the alleged contravention of Regulation 44. In otherwords, the witnesses whom the complainant wanted to examine to establish the above commissions and omissions with reference to the above record should have been cited. In the absence of these material particulars, specific averments in the complaint and in the absence of the relevant record about which there is not even a whisper in the complaint, I fail to understand as to how the complainant would have succeeded in establishing the charge. Having regard to these omissions on the part of the complainant the ratio of supra becomes relevant. It is held,--
is now a well settled principle of law that if the allegations made in the FIR arc taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed.
the instant case two employees of the State Bank of India and one of its clients holding Current Accounts were charged under Sections 120-B, 420,468 and 471, I.P.C. and Section 5(2) read with Section 5(1)(d) "of the Prevention of Corruption Act, 1947. It was manifestly clear from the allegations in the FIR that the accused bank employees had no intention whatsoever to make any wrongful gain or to make any wrongful loss to the Bank in accepting certain cheques. The allegations made either in the FIR or in the charge-sheet did not show that the bank employees or the client had acted dishonestly, that is to say, acted with a deliberate intention to cause wrongful gain or wrongful loss, nor did the allegations constituted any offence of cheating or forgery. At the most there was some delay in making relevant entries. Since the FIR did not contain any definite accusation, it amounted to an abuse of the process of the Court. The criminal proceedings were therefore liable to be quashed in exercise of powers under Section 482 Cr.P.C."
14. I shall now deal with the contention of Sri Venkata Rao that Section 28 of Oil and Natural Gas Commission Act is a bar for the prosecution of the respondents. The relevant provision is extracted below for ready reference.
"28. Protection of action taken tinder Act:-No suit, prosecution or other legal proceeding shall lie against the Commission or any member or employee of the Commission for anything which is in good faith done or intended to be done in pursuance of this Act or of any, rule or regulation thereunder."
15. It is a common ground that the respondents were discharging the duties entrusted to them by virtue of the office held by each of them. It is asserted on behalf of the respondents that they have discharged their duties in good faith. The learned Magistrate applied the definition of 'good faith' occurring in Section 3(11) of the General Clauses Act and expressed the view that every honest act falls under the definition of 'good faith'. He referred to the allegations in the complaint and held that there is no whisper in the complaint petition'that the accused dishonestly acted.....'. It is true that there is no specific averment in the complaint that the respondents herein have acted without due care and attention'. It follows that they are deemed to have performed their duties with all care and caution and hence in good faith. Thus, the learned Magistrate has pressed into service Section 28 of Oil and Natural Gas Commission Act and dropped the proceedings. The thrust of the argument of the learned Counsel for the appellant is that such an order was uncalled for at the threshold. It is seen that in judgment cited supra (1) the Supreme Court held that such an order is permissible at any stage. Even otherwise, I have dealt with the allegations in the complaint and I have pointed out that there are glaring omissions on account of which the prosecution may not succeed even if it has taken to its logical end. I, therefore, do not find any merit in this appeal.
16. In the result, the appeal is dismissed.