Akkala Surendra Babu vs State Of Madhya Pradesh

This petition under Section 482 Cr.P.C. has been filed to invoke the extraordinary jurisdiction of this Court and to quash the FIR at Crime No.

250/2014 registered at Police Station Amlai and subsequent Criminal Case No. 756/2015 pending before JMFCÂ Budhar (Shahdol).

Bereft of the unnecessary details the facts which are requisite for disposal of this petition are that, Police Station Amlai lodged the FIR in Crime No.

250/2014 for the offence under Section 304-A read with Section 34 of IPC and subsequently after investigation filed charge-sheet before JMFC

Budhar for the offence under Section 304-A read with Section 34 of IPC against the accused persons/petitioners Akkala Surendra Babu, General

Manager (Operation), Prahlad Prasad Gupta, Chief General Manager (Mining), Amit Kumar Banerji Dy. General Manager (Excavation), AnuragÂ

Shekhar Dubey, Senior Manager (Mining), Gitendra Deep, Senior Manager (Excavation) and Anil Kumar Singh Manager (Excavation) along with

other accused persons which includes D.P. Tiwari, A.K. Mital, Upendra Kumar etc.

As per the prosecution story, the mining activities of Amlai Open Cast Mines has been stopped in the year 2011 due to non-availability of Coal. On

21.06.2014 at about 05:00 pm. when sand/muram was being filled in open area left after excavation of coal one Haulpak/ Dumper fell down into the

water logged Old Amlai Open Cast Quarry because of the sliding of an embankment. The Driver came out of the cabin and saved his life however,

the Dumber rolled down into the water. On 23.06.2014 the manager Dhanupuri OCM in his presence tried to take out the Dumper, while doing so all

the four wheels were broken and came out. On 01.07.2014 knowing well that it will be a risk for the lives of the workers Manager Dhanpuri, OCM,

Akkala Surendra Babu, Sub-Area Manager, Dhanpuri OCM, C.P. Gupta, Mines Manager, A.K. Banarjee, Chief Manager, Excavation, Anurag

Shekhar Dubey, Senior Manager Mining (Safety Officer), Jitendra Dubey, Senior Manager, (Excavation) and Anil Kumar Singh, Manager

(Excavation) with common intention planed to do the work and trusted contractor Saboor Khan to make the ceiling. After preparing the ceiling

while taking out the Haulpak/Dumper, machine was pulled out, knowing very well that ground is filled with water and the embankment may slide,

which may cause accident, the work was conducted. A large portion of earth gave in, due to which, Khajanti Gupta and Ramashankar Vishwakarma

fell down into water and died. Due to the accident Nanhku Ram and Khem Raj had also fallen into the water logged mines but somehow they came

out. Rescue operation conducted to recover Khajanti Gupta and Ramashanker, but their dead bodies could not be recovered. Merg No 23/2014 and

24/2014 were lodged on 12.07.2014. When the rescue operation was stopped the statement of witnesses were recorded. It was found that Nanku

Ram Diver was working under the water, Operator Ramdular and Jatashanker were trying to pull out the Dumber with the help of Dozer Machine.

After investigation charge-sheet has been filed. D.P. Tiwari was working as General Manager Sohagpur area, A.K. Mital was General Manager

Sohagpur area and Upendra Kumar was working as Sub-Area Manager. Their application under Section 482 Cr.P.C. was registered as M.Cr.C.

12791/2015. The same was allowed on 04.07.2016 by this Court.

The order dated 04.07.2016 is as much applicable to the present case, the report of the Sub-Divisional Manager, Sohagpur dated 13.04.2018 had given

the report as follows:

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vf/kdkfj;ks ds }kjk vius dFku esa lqj{kk O;oLFkk ds fy;s trw k] Vksih vkfn dh O;oLFkk fd;k tkuk izko/kkfud gksuk ork;k gS] tks bruh oM+h

Hkh""k.k  ?kVuk ds fy;s mDr O;oLFkk Ik;kZIr ugha

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okn ls [kqyk NksMdj j[kk x;k Fkk] tofd ona [knku dkQh xgjh o mlesa vFkkg ikuh dk Hkjko Fkk] ,slh fLFkfr esa tu lkekU; ds lqj{kk dks n`f""Vxr j[krs

gq;s cna [knku dk Hkjko u djkus ds fy;s dkyjh iz'kklu iw.kZ :is.k nRrjnk;h gSA

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fd;s x;s FksA

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dkQh xgjh o mlesa vFkkg ikuh dk Hkjko Fkk] ,slh fLFkfr esa tu lkekU; ds lqj{kk dks n`f""Vxr j[krs gq;s oan [knku dk Hkjko u djkus ds fy;s mijksDr ds

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leku :i ls nks""kh o mRrjnk;h gSA^^

It is further claimed by the learned counsel for the petitioners that on perusal of the inquiry report, it is evident that the operations were being

conducted as per the provisions of the Mines Act and Rules and, therefore, no iota of doubt that the allegation pertaining to the offence as has been

alleged is never permissible in view of the provisions of Section 75 of the Mines Act.

Section 75 of the Mines Act provides that:-

Prosecution of owner, agent or managerNo 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.

It is claimed that the present petitioners have not been implicated 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. The petitioners claimed that launching of the prosecution for the

matter falling under special under legislation is not permissible to be gone into under General Law.

Per contra, the petition has been strongly opposed by the learned P.L for the respondent/State.   Â

In this context of the submissions advanced on behalf of the parties, one needs to take notice of the provision as contained in Section 4 of the Code of

Criminal Procedure which deals with the matter regarding investigation and inquiry of the case falling under the Indian Penal Code or any Special Act

which reads as follows:-

Trial of offence under the India Penal Code and other laws:-

(I) All offences under the Indian PenalCode (46 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions

hereinafter contained.

(II) All offences under any other lawshall 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:-

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 object to qualification thatin respect of offences under other laws that is to say, under laws other than Indian Penal Code, if there be

anenactment 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 lawwill prevail over the provisions contained in the code unless there is specific provisions to the contrary.

Having taken notice of the provision of Section 4 of the Code of Criminal Procedure 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 provision 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

byelaw or of any order made thereunder (other than an order made under subSection 1-A) or sub-section (2) or subSection (3) of Section 22 [or under

subsection (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.

The allegation of the FIR falls within the ambit of section 72-C(i)(a) of the Mines Act. According to this provision, if there is a loss of life on account

of contravention of any provision of the Mines Act or Mines Rules or regulations Section 72(C) (i)(a) of the Act is applicable. Therefore, the

prosecution under general law is not permissible in view of the provision of the section 75 of the Mines Act. There is no doubt that the report of Deep

Prasad Gupta, Senior Manager, Raghunath Singh Manager Mining, so that the petitioners and co-accused Subhash Chandra Mishra, Manoj Kumar

Gupta and S.N. Raut did not discharge their responsibilities properly and thereby did not adverting the incident. Considering the fact that the Chief

Inspector has not held the petitioners liable for the offence and for the negligence, if at all by the petitioners for which they may be held liable for civil

liability. There is no direct nexus between the death of the two persons and the negligent act. The remote nexus is not enough to constitute offence

under Section 304-A of the IPC.

Considering the fact that there is no report of the Chief Inspector as provided under Section 75 of the Mining Act for the loss of life on account of

contravention the provision of Section 72-C(i)(a) of the Act is applicable which is special Act. Launching a prosecution for the matter falling under

special legislation is not permissible to be gone under the general law.

This petition is allowed. Cognizance taken against the petitioners by JMFC Budhar in Criminal Case No. 756/2014 for the offence under Section 304-

A read with Section 34 of IPC is hereby set aside.