Sujit Kumar Roy and another vs State of Jharkhand and others

R.R. Prasad, J.—Heard learned Counsel appearing for the petitioners, learned Counsel appearing for the State and learned Counsel appearing for the opposite party No. 3. The facts giving rise to this case are that when one Ayub Sheik working in the Mines died, a case was lodged by the father of the deceased which was registered as U.D case No. 9 of 2007. When enquiry in that matter was taken by the Officer-in-Charge, Maheshpur Police Station, he did find that Ayub Sheik died, on account of receiving injuries due to explosion caused in a mine, lessee of which is the petitioner No. 1 whereas the petitioner No. 2 is the manager of the petitioner No. 1 and for that, First Information Report was lodged which was registered as Maheshpur (Raddipur) P.S. Case No. 155 of 2007 (G.R. No. 611 of 2007) under sections 304, 286,337,338, 201 and 34 of the Indian Penal Code. After submission of the charge-sheet, the Court vide its order dated 5.2.2008 took cognizance of the offences which has been challenged in this application filed u/s 482 of the Code of Criminal Procedure.

Learned Counsel appearing for the petitioners submits that allegations upon which the aforesaid First Information Report has been 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 quashed.

Learned Counsel in support of his submission has relied upon a decision rendered in a case of Binod Kumar Das and others v. State of Jharkhand and another 2008 (64) AIC 430 (Jhar., H.C.) and also in a case of Rabindra Agrawal v. State of Jharkhand and another 2010 (2) JCR 667 (Jhr)

Mr. Khan, learned Counsel appearing for the opposite party No. 3 submits that after the accident took place in which one of the person died for which the police case has been registered the Director General of Mines Safety, Sitarampur Region No. III held an enquiry and found that due to blasting operation done within the leasehold area a person not an employee of the petitioner received injury beyond the leasehold area of Mines and therefore, the police has rightly instituted the case under the provision of the Indian Penal Code.

In this context of the submission 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 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:

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.

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.

The provisions of special or local law will 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 Actor 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 subsection (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.

From reading of the said provision it does appear 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.

From the perusal of the enquiry report also as annexed with the counter-affidavit, it is quite evident that the deceased Ayub Sheik died due to blasting operation was done by contravening the provision of the Mines Act/Rules or Regulation and therefore, there is no iota of doubt that the allegation pertains to the provision 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 provision as contained in section 75 of the Mines Act which reads as follows:

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.

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.

In such situation, this Court having regard to the provision as contained in section 4 of the Code of Criminal Procedure did hold in a case of Binod Kumar Das and others v. State of Jharkhand and another (supra) that the prosecution under the General Law on the allegation which falls within the ambit of special legislation is not permissible.

Accordingly, the order dated 5.2.2008 under which cognizance of the offence has been taken u/s 304 of the Indian Penal Code by the Chief Judicial Magistrate, Pakur in Maheshpur (O.P Raddipur) P.S. Case No. 155 of 2007 (G.R. No. 611 of 2007) is hereby set aside. In the result, this application is allowed. Application Allowed.