Jaikrishna Kamla and Others vs State of M.P.

U.C. Maheshwari, J.—The applicants have filed this petition u/s 482 of the Cr.P.C. for quashment of the entire proceedings of criminal case No. 1787/11 pending against them for their prosecution u/s 304-A of the IPC in the court of CJM Betul. As such this petition has been filed after passing the order by the Addl. Sessions Judge, Betul vide dated 18.9.12 in Cr.R. No. 15/12 whereby the order dated 19.1.12 passed by the aforesaid CJM Betul in aforesaid criminal case framing the charge of section 304-A of the IPC against the applicants, has been affirmed. The facts giving rise to this petition in short are that on dated 17.12.09 deceased Parasram Wankhede accompanied with other laborers, was working in the Coal Mine of WCL situated in village Paathakheda within the territorial jurisdiction of P.S. Sarni in Shobhapur. During the course of such working, some roof of the mine fell down and due to that Parasram sustained injuries and succumbed to the same. On receiving the information from the WCL hospital, Paathakheda, an inquest report No. 93/09 was registered. After preparing the memorandum of the dead body, the same was sent to the hospital where its autopsy was carried out. In further inquiry of the marg it was found that said labor Parasram had died in an accident which was the cause and consequence of grave negligence of the applicants, on which, the Crime No. 086/11 was registered at the aforesaid police station on dated 15.5.11 for the offence of section 304-A of the IPC against them. After holding the investigation and establishing the ingredients of the alleged offence against them, they were charge sheeted.

On evaluation of the papers of the charge sheet along with the police report, the charge of section 304-A of the IPC was framed against each of the applicants. Being dissatisfied with such order framing the charge, the applicants filed the above mentioned revision before the Sessions Court. On consideration, by affirming the order of the trial court, the same was dismissed, on which, the applicants have come to this court.

The applicants counsel after taking me through the papers placed on the record including the FIR (Ann. P-4), the covering letter of the Director General of Mines Safety, Ministry of Labor, Govt. of India dated 25.11.2010 (Annex. P/3) contending that some inquiry with respect of the aforesaid accident was conducted by the officer of the Directorate Shri C. Ramesh Kumar, Dy. Director of Mines Safety, Nagpur-I Region and the findings of such inquiry (part of Annx. P/3) so also the impugned order of the revisional court, the applicants counsel by referring the provision of section 72C, 75 and 79 of the Mines Act, 1952 (in short the Act) argued that in the matter like present one, the prosecution could be entertained only on the complaint at the instance of the Chief Inspector of (Mines Safety) or of the District Magistrate (Collector) of the district, which is Betul in the present matter, thus the impugned prosecution could not be permitted at the instance of the police report filed after holding the investigation u/s 173 of the Cr.P.C. In continuation, by referring section 4 and 5 of the Cr.P.C., he argued that in view of such provision of the Cr.P.C., in the available circumstances, the provision of the aforesaid specific Act "the Mines Act, 1952" was applicable and in view of the availability of such provision to prosecute the applicants, their impugned prosecution u/s 304-A of the IPC, is not sustainable. He further said that as per case of the prosecution on account of some failure in discharging duties in accordance with the Act by the applicants, being officers of the WCL, to make the proper arrangement of security, the alleged accident was happened in which said Parasram had died then on account of contravention or violation of the provisions of the Act, if it resulted in death of any person then the same is made punishable under Clause-(a) of sub section 1 of section 72-C of the Act and in view of such provision of punishment, the applicants could not be prosecuted u/s 304-A of the IPC. In continuation, by referring section 75 of the Act, he said that with respect of the alleged incident or any contravention of the law by the applicants which resulted in death of the employee or laborer in the mines, the prosecution of the applicants could not be carried out, except at the instance of the Chief Inspector or the District Magistrate or the inspector authorized in this behalf by the general or special order in writing by the Chief Inspector. He further said that under the aforesaid provision, the maximum punishment of the imprisonment of two years has been provided and on the date of filing the charge sheet, the prosecution was also time barred as per provision of section 79 of the Act in which the limitation for taking the cognizance in such matters, has been prescribed for six months and beyond six months, no cognizance of such offence could have been taken with respect of the present offence. He further said that in view of the aforesaid legal position of the Act, at the instance of the police report, the impugned case could not have been entertained by the trial court but under wrong premises, the same was entertained and the aforesaid order framing the charge of section 304-A of the IPC against the applicants was passed and the trial was directed to be proceeded further. He further said that on filing the criminal revision No. 15/12 against the aforesaid order dated 9.1.12 framing the charge before the Sessions Court, on consideration vide order dated 18.9.12, the same was dismissed, on which, the applicants have come to this court with this revision for quashment of the entire proceedings of the aforesaid criminal case pending in the above mentioned court and prayed to set aside the orders of the court below and quash the entire charge sheet by admitting and allowing this petition. In support of his contention he has also placed his reliance on unreported decision dated 23.11.11 of the Jharkhand High Court at Ranchi directed in Cr.M.P. No. 69/08 (Sujit Kumar Roy and another Vs. State of Jharkhand and others).

Having heard the counsel at length, keeping in view the arguments advanced, I have carefully gone through the papers annexed with the petition on behalf of the applicants. I would like to mention here that inspite filing the charge sheet the copy of the same has not been annexed with this petition on behalf of the applicants. As per averments of the FIR on dated 17.12.09 at about 3.25 in the noon in the above mentioned coal mines, said Parasram, timber mistry while discharging his duties, on falling the roof of mine on him, received fatal injuries in such accident and submitted to the same. Subsequent to registration of the inquest report, its inquiry was held. Besides this, under the provisions of Mines Act, 1952, the appropriate inquiry with respect of the aforesaid accident was conducted by the DGMS. According to such inquiry report, the management and subordinate superior officers were found to be guilty for such accident. On interrogation by the Major of Mines, it was revealed that on the date of the accident, for the management of the alleged work under Manager J.K. Kamla/applicant No. 1, Overman Somnath Roy/applicant No. 2 and the Mining Sardaar Raajaraam/applicant No. 3 were deputed and they are responsible for the alleged accident in which deceased Parasram sustained the injuries and died. It is apparent from the FIR that not only due to contravention of any law but on account of grave negligence in providing security to the employee/laborer like Parasram, the incident was happened and after sustaining the injuries, said Parasram succumbed to the same and in the light of marg inquiry report of the report of DGMS so also of the interrogation of Major of Mines, the impugned crime of section 304-A of the IPC was registered against the applicants.

Before proceeding further, I would like to mention here the concerning abstract of the aforesaid provision of the Act referred by the applicants counsel. The same is read as under:--

72C. Special provision for contravention of law with dangerous results.-(1) Whoever contravenes any provision of the Act or of regulation, rule or bye-law or of any order made under (1A) or sub-section (2) of section (3) of section 22 for under subsection (2) of section 22A 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, or

(b) If such contravention results in serious bodily injury with imprisonment which may extend to one years, or with fine which may extend to three thousand rupees, or with both; or

(c) If such contravention otherwise causes injury or danger to persons employed in the mine or other persons in or about the mine, with imprisonment which may extend to three months or with fine which may extend to one thousand rupees, or with both.

Provided that in the absence of special and adequate reasons to the contrary to be recorded in writing in the judgment of the court, such fine, in the case of a contravention referred to in clause (a), shall not be less than three thousand rupees.

(2) Where a person having been convicted under this section is again convicted thereunder, shall be punishable with double the punishment provided by sub-section (1).

(3) Any court imposing or confirming in appeal, revision or otherwise a sentence of fine passed under this section may, when passing judgment, order the whole or any part of the fine recovered to be paid as compensation to the person injured or, in the case of his death, to his legal representative;

Provided that if the fine is imposed in a case which is subject to appeal no such payment shall be made before the period allowed for presenting the appeal has elapsed of, if an appeal has been presented, before the decision of the appeal.

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 authorised in this behalf by general or special order in writing by the Chief Inspector.

Provided that the Chief Inspector or the District Magistrate or the Inspector as so authorised shall, before instituting such prosecution, satisfy himself that the owner, agent or manager had failed to exercise all due diligence to prevent the commission of such offence.

Provided further that in respect of an offence committed in the course of the technical direction and management of a mine, the District Magistrate shall not institute any prosecution against an owner, agent or manager without the approval of the Chief Inspector.

Limitation of prosecutions.-No court shall take cognizance of any offence under this Act, unless complaint thereof has been made--

(i) within six months of the date on which the offence is alleged to have been committed, or

(ii) within six months of the date on which the alleged commission of the offence came to the knowledge of the Inspector, or

(iia) In any case in which the accused is or was a public servant and previous sanction of the Central Government or of the State Government or of any other authority is necessary for taking cognizance of the offence under any law for the time being in force, within three months of the date on which such sanction is received by the Chief Inspector; or

(iii) in any case where a Court of inquiry has been appointed by the Central Government u/s 24, within one year after the date of the publication of the report referred to in sub-section (4) of that section, whichever is later. Explanation - For the purposes of this section-

(a) In the case of continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues,

(b) Where for the performance of any act time has been extended under this Act, the period of limitation shall be computed from the expiry of the extended period.

I would like to reproduce the provision of section 4 of the Code of Criminal Procedure. The same reads as under:--

Trial of offences under the Indian Penal Code and other laws.--

(1) All offences under the Indian Penal Code (45 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.

I would like to reproduce section 304-A of the IPC also. The same reads as under:--

304-A. Causing death by negligence:--

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both

True it is as per provision of section 72C, the person who contravenes the provision of the aforesaid Act or any regulation, rule or bye-law or any order made there under as mentioned above, shall be punishable, 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. It is also apparent from section 75 that if any offence is committed by any accused like the applicants, the same is punishable under the aforesaid provision of section 72-C and according to this provision, 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 authorised in this behalf by general or special order in writing by the Chief Inspector. In such sections a proviso, as stated above, has also been given providing the procedure according to which stated officer/Authority shall initiate the proceedings under the Act and, as per section 79 of the Act, the limitation to take the cognizance of such offence by the court on filing such complaint could be six months from the date of the alleged offence or within six months from the date of such alleged commission of the offence came to the knowledge of the inspector or in any case if sanction for prosecution is required then within three month from such sanction. Inter alia, in the aforesaid provision, with respect of contravention of any provision, the prosecution could be initiated by way of the complaint by the authorized person mentioned in section 75 of the Act within six months as stated above and not at any belated stage.

The aforesaid provision of punishment, the procedure of the prosecution as well as the limitation have been enacted to punish the person who has contravene any provision of the Act. Mere reading of aforesaid section 72-C, it is apparent that under such section and provision the punishment is not provided regarding grave negligence committed by the person like the applicants in discharging their duties to provide the security to the employee/laborer in discharging their duties and, in such premises, I am of the view that after holding the investigation, on filing the charge sheet, the trial court on the basis of police report and annexed papers of the charge sheet on establishing the act of the prima facie ingredients of the offence of grave negligence against the applicants which resulted the death of the employee/laborer has not committed any error in taking the cognizance in the matter u/s 304-A of the IPC. As such accused like the applicants could not escape from their prosecution u/s 304-A of the IPC. It is apparent from the aforesaid provision of the Act that regarding alleged crime, no provision of punishment is provided under the Act of 1952. So, in such premises the applicants, in the lack of any provision for punishment of the grave negligence in the act, the person like the applicants could be prosecuted under the provision of general law i.e. u/s 304-A of the IPC as reproduced above. Prima facie their case is covered under such section to hold the trial.

So far the arguments advanced by the applicants counsel in the light of section 4 of the Cr.P.C., I do not dispute the language of such provision but in the available factual matrix of the case at hand, the alleged offence of grave negligence, which resulted in death of the employee/laborer, is made punishable only u/s 304-A of the IPC and such offence could be investigated, inquired, established and tried only in accordance with the provision of Code of Criminal Procedure.

In view of the aforesaid discussion when it is apparent that in addition to contravention of any law, rule and regulation of the Act, the applicants have also committed the offence defined u/s 304-A of the IPC which is prima facie revealed in investigation by the police. Besides this the same was also established on carrying out the inquest inquiry by the above mentioned officer of the Mining department and the same was also stated by the Major of the Mines on making his interrogation. So, mere on the basis of the provision of punishment regarding contravention of the alleged offence under the Act, the applicants cannot escape from the liability of their alleged committed offence of grave negligence which resulted in death of the employee. So, in such premises, it could be said safely that inspite the procedure prescribed under the Act or rules or regulation, as stated above, the person like the applicants could be prosecuted, for the alleged cognizable offence of grave negligence u/s 304-A of the IPC.

So far the aforesaid unreported decision cited on behalf of the applicants in the matter of Sujit Kumar Roy (supra), it is suffice to say that while passing such order, the provision of section 304-A of the IPC for taking the cognizance in the same provides the punishment regarding negligental act of the accused like the applicants which resulted the death of employee was not taken into consideration and without considering such aspect such order discharging the concerning accused from the alleged offence was passed. Hence, in view of aforesaid discussion, such cited case is not helping to the applicants at this stage. So, I respectfully differ from the approach of the aforesaid cited order of Jharkhand High Court.

At this juncture, in the available scenario, I deem fit to reproduce the provision of sub clause-4 of section 155 of the Cr.P.C. The same reads as under:--

Section 155: Information as to non-cognizable cases and investigation of such cases--

(1).....

(2)....

(3) ........

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

In view of aforesaid provision, the investigating agency of the impugned criminal case was also having authority to investigate the matter with respect of the aforesaid non-cognizable offence of the Act in which no cognizance could be taken unless the complaint is filed because prima facie in the aforesaid inquiry and investigation it was found that the applicants have committed cognizable offence of section 304-A of the IPC. So, in such premises, notwithstanding any provision in the Act, the investigating authority could have investigated the aforesaid non-cognizable offence of the Act also. Although, as per available record, the impugned charge sheet has not been filed by the investigating agency against the applicants with respect of the offence punishable u/s 72C of the Act but I am of the considered view that at the time of framing the charge or at any subsequent stage by virtue of section 216 and in view of the provision of section 190 read with section 155(4) of the Cr.P.C., on evaluation of the charge sheet, the trial court could have come to the conclusion that the ingredients of such non-cognizable offence is also made out then along with the charge of section 304-A of IPC, the charge of aforesaid non-cognizable offence, may also be framed against the applicants. So, to consider this aspect liberty is extended to the trial court.

Apart the aforesaid, I am of the considered view that the inherent powers of this court vested u/s 482 of the Cr.P.C. could not be invoked for quashment of the impugned trial in the present matter specially when the prima facie ingredients of the alleged offence of section 304-A for framing the charge being found by both the courts, the trial court, as well as, by affirming the order of framing the charge, by the revisional court then under the garb of section 482 of the Cr.P.C., the applicants could not be permitted to file the second revision contrary to the provision of section 399(3) of the Cr.P.C. In such premises also the present petition could not be entertained. In view of the aforesaid discussion, I have not found any merits in this petition for quashment of the trial of the above mentioned criminal case, u/s 482 of the Cr.P.C. Resultantly, the same is hereby dismissed at the stage of motion hearing.