Jharkhand High Court
Dinesh Chandra Jha vs The State Of Jharkhand And Anr on 27 July, 2016
Equivalent citations: 2017 (2) AJR 181
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. M.P. No. 668 of 2015
Dinesh Chandra Jha, son of Surya Narayan Jha, resident of
Bunglow No. 2, Koyla Nagar Township, P.O. Koyla Nagar
P.S. Saraidhela, District Dhanbad (Jharkhand)
... ... ... Petitioner
Versus
1.The State of Jharkhand
2.Sri Vir Pratap, son of not known to the petitioner, Deputy
Director of Mines Safety, Region No. 1, Dhanbad, P.O. and
P.S. and District Dhanbad ... ... ... Opp. Parties
CORAM: THE HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
............
For the Petitioner : Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Anoop Kumar Mehta, Advocate
Mr. Kumar Harsh, Advocate
Mr. Amit Kumar Sinha, Advocate
For the Opp. Parties : Mrs. Nitu Sinha, Central Govt. Counsel
7/27.07.2016Heard Mr. Anil Kumar Sinha, learned senior counsel for the petitioner and Mrs. Nitu Sinha, learned central government counsel appearing for the opposite party No. 2.
In this application, petitioner has prayed for quashing of the entire criminal proceeding in connection with C.M.A. Case No. 49 of 2015, including the order dated 18.02. 2015, passed by learned Chief Judicial Magistrate, Dhanbad, whereby and whereunder, cognizance has been taken for the offence punishable under Section 73 of the Mines Act 1952.
A complaint was made by the Inspector of Mines (opposite party No. 2) before the learned Chief Judicial Magistrate, Dhanbad in which it was alleged that fire had advanced and affected almost 1300 meters of Dhanbad Chandrapura (D.C.) Railway line which spread to the west and south side. It was also alleged that an inspection was made on 16.09. 2014 pursuant to the direction issued through various letters, but no action was taken by the Management to comply with the contravention made in the Coal Mines Regulation 1957.
In view of the nature of allegation, C.M.A. Case No. 49 of 2015 was instituted against four accused persons including the petitioner who was Nominated Owner and Director Technical (Operations) of M/s B.C.C.L. Ltd. Pursuant to the filing of the -2- complaint petition, vide order dated 18.02. 2015, cognizance was taken by the learned Chief Judicial Magistrate, Dhanbad under Section 73 of the Mines Act.
Mr. Anil Kumar Sinha, learned senior counsel for the petitioner has challenged the impugned order taking cognizance by submitting that there has been a contravention of Regulation 105 (4) of the Coal Mines Regulation 1957.( hereinafter referred as Act), in as much as, although notices were issued to the agents of the company as well as the Chairman cum Managing Director of M/s B.C.C.L. Ltd., but no notice was ever issued, which was mandatory requirement under Sub Rule 4 of Regulation 105. Learned senior counsel further submits that it is an admitted fact that petitioner is the nominated owner and it was the bounden duty of the opposite party No. 2 to bring to the notice of the owner, any incident of fire which was spreading, so that preventive and protective measures be taken by the owner. Learned senior counsel further submits that apart from Regulation 105 (4) having not been followed, the other regulations violated, for which petitioner is being prosecuted under Section 73 of the Mines Act, i.e. Regulation 122 and Regulation 117 (4) which is vague and does not concern the petitioner. Learned senior counsel submits that although no specific ingredient has been demarcated with respect to the violation of regulation 105(4), 122 and 117(4), but in view of Section 73 of the Mines Act which is penal provision the same comes into picture as residuary provision. Learned senior counsel also referred to Section 5 of the Mines Act which deals with Chief Inspector and Inspector. Section 6 which delegates the function of the Inspector and stated about the competency of the Opposite Party No. 2 to institute a complaint case. However, in view of the counter-affidavit which has been filed by the opposite party No. 2 in which reference has been made to the Gazette Notification dated 11.10.2013, in which while exercising power under Section 75 of the Mines Act the Director General of Mines Safety has authorized all officers appointed as Inspector of Mines to institute prosecution for any offence and therefore in view of such notification, no thrust has been put upon with respect to the opposite party No. 2 having not been delegated the power to institute a complaint. With respect to the mandatory -3- provisions, as stated by the learned senior counsel for the petitioner under Regulation 105 (4), reference has also been made to the duties and responsibilities of the Manager as enunciated in Regulation 41 which also includes investigation into or carrying out any query with respect to the said report affecting the work of the mines underground or safety for health and safety of the persons in or about the mines. Learned senior counsel thus while concluding his argument has submitted that in view of the non compliance of the Regulation 105(4), the entire criminal proceeding instituted as against the petitioner deserves to be quashed and set aside.
At this, Mrs. Nitu Sinha, learned central government counsel has submitted that Regulation 105 (4) is not a mandatory provision and it is merely directory in nature, as the language itself suggests that Chief Inspector may require the owner to take such protective work within the time as specified in the order. It has been submitted that option lies with that inspector whether or not to inform the owner in writing and therefore in absence of any mandatory provision, no prior notice of taking safety measure or protective measure with respect to the underground fire affecting 1300 mtrs. in the Dhanbad Chandrapura Railway line does not have any bearing. It has also been submitted that so far as the power of opposite party No. 2 to institute a complaint is concerned, by virtue of the Gazette Notification dated 11.10. 2013, opposite party No. 2 was delegated the authorization to institute a complaint and on such score also, case of the petitioner fails. It has thus been submitted that present application is liable to be dismissed.
The cognizance which has been taken by the learned Chief Judicial Magistrate, Dhanbad under Section 73 of the Mines Act is on the basis of non compliance of the provisions of Regulation 105 (4), 122 and 117 (4) of the Act. In order to appreciate the rival contentions, it would be necessary to reproduce Sub Regulation 4 of Regulation 105 which reads as under:-
(4) Where the stability of such railway, road, works, building or structure has been endangered due to any mining operations, the Chief Inspector may, by order in writing require the owner to construct in the mine belowground or on the surface such protective works within such time as he may specify in the order.-4-
The complaint petition reveals about the three letters dated 18.09. 2013, 05.11.2013 and 23.06. 2014. The letters which are appended with the complaint petition have been addressed either to the agent of the Sendra Bansjora Colliery or the Chairman cum Managing Director of M/s B.C.C.L. Dhanbad. Although in the counter-affidavit it has been stated that letters were marked to the petitioner being the Nominated Owner, but perusal of all the three letters does not justify or substantiate the said statements made in the counter-affidavit. If what has been submitted by learned central government counsel with respect to Sub Regulation 4 of regulation 105 is true, there was no occasion to justify issuance of prior notice upon the agents or the chairman cum Managing Director of the company. The tenor of the notices reveals that in view of the subsisting fire under Dhanbad Chandrapura railway line, necessary and immediate steps were directed to be taken to prevent such fire in spreading and damaging the stretch of the railway line. The language of sub regulation 4 of regulation 105 clearly reveals that although the word 'may' has been used, but if the same is interpreted not in isolation, the same would lead to the conclusion, that it is indeed a mandatory provision which was required to be followed by Chief Inspector. The basic purpose of sub rule 4 of regulation 105 is to notify the authorities to take immediate preventive measures so that incident of fire may be minimized and lessen the damage loss caused in the Dhanbad Chandrapura Railway line. As has been depicted in Sub rule 4 of Regulation 105, the Chief Inspector is to intimate the owner to take preventive measures. Admittedly, petitioner is the nominated owner and the Director Technical Operation of M/s BCCL Ltd. It was incumbent upon the opposite party No. 2 to intimate the petitioner in terms of sub rule 4 of regulation 105 for taking appropriate preventive measures, but none of the letters suggests that such steps had been taken by the opposite party No. 2.
Subsequently, however stand has been taken by the opposite party No. 2 in his counter-affidavit that prior to institution of the F.I.R. the notice was given to the petitioner. Mere notice intimating the -5- initiation of criminal prosecution would not suffice or would not fulfill the procedural mandate, as has been laid down in Sub Regulation 4 of Regulation 105.
So far as other points which has been raised by Mr. Anil Kumar Sinha, learned senior counsel for the petitioner at the initial stage is concerned the same has been aptly replied by the opposite party No. 2 in the counter-affidavit filed with respect to the opposite party No. 2 having been delegated with power of launch prosecution and therefore such assertion is automatically negated.
Consequent to what has been discussed above I find merit in this application. Accordingly, the same is allowed and the entire criminal prosecution in connection with C.M.A. Case No. 49/2015, including the order dated 18.02. 2015, passed by learned Chief Judicial Magistrate, Dhanbad, by which cognizance has been taken for the offence punishable under Section 73 of the Mines Act 1952 is hereby quashed and set aside so far petitioner is concerned.
Pending I.A., if any, stands disposed of.
(Rongon Mukhopadhyay, J.) Binit