BINOY KUMAR MISHRA Vs. STATE OF JHARKHAND AND ANR
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 313 - Power to examine the accused.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 246-247-248-249 of 2017, Judgment Date: Mar 31, 2017
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 246 OF 2017
BINOY KUMAR MISHRA .....APPELLANT(S)
VERSUS
STATE OF JHARKHAND AND ANOTHER .....RESPONDENT(S)
W I T H
CRIMINAL APPEAL NO. 247 OF 2017
CRIMINAL APPEAL NO. 248 OF 2017
A N D
CRIMINAL APPEAL NO. 249 OF 2017
J U D G M E N T
A.K. SIKRI, J.
An unfortunate incident occurred in PK-1 Unit of Kusunda
Colliery, Dhanbad (Jharkhand) on 05.01.1996 at about 06:40 AM when a gang
of seventeen loaders was engaged in loading coal at Junction 9, East Level
of Two Dip, Bottom Section. Combined Seam of the aforesaid unit of the
Colliery, coal roof measuring about 7.6 m x 6.1 m x 0.20 m fell from a
height of 2.8 m on the aforesaid seventeen loaders. This mishap resulted
in the death of four persons and serious bodily injuries to five persons
whereas remaining eight loaders escaped unhurt. On reporting of this
accident, Director of Mines Safety, Dhanbad (Jharkhand) (respondent No.2
herein) commenced inquiry/investigation on 06.01.1996 under Section 23(2)
of the Mines Act, 1952 (hereinafter referred to as the ‘Act’). Based on
the inquiry report dated 12.02.1996 submitted by respondent No.2, a
complaint was filed by him before the learned Chief Judicial Magistrate,
Dhanbad against the following employees of Kusunda Colliery:
Mahendra Prasad Gupta, General Manager
Nageshwar Sharma, Additional General Manager
Madhusudan Banerjee, Agent
Binoy Kumar Mishra, Manager
Shankar Prasad Mukherjee, Underman
Saheed Akhtar Khan, Overman
Ambika Singh, Mining Sirdar
Out of the aforesaid seven accused persons, first four are the public
servants. In the complaint, prosecution for non-cognizable offences
punishable under Sections 72A, 72C(1)(a) and 72C(1)(b) of the Act was
sought. The trial court took cognizance of this complaint. Trial started
with the examination of prosecution witnesses. In conclusion of their
depositions, statements of the accused persons under Section 313 of the
Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) were recorded. This
trial culminated into judgment dated 09.03.2007 passed by the trial court
convicting all the accused persons under the aforesaid provisions. Each of
these accused persons was ordered to undergo rigorous imprisonment for a
period of six months with a fine of Rs.2,000/- for offences under Section
72A; rigorous imprisonment for two years with a fine of Rs.5,000/- for
offence under Section 72(C)(1)(a); and rigorous imprisonment for one year
with a fine of Rs.3,000/- for the offence under Section 72C(1) (b) coupled
with the direction that all the sentences would run concurrently. For
default of payment of fine, additional rigorous imprisonment for six months
was also imposed.
The accused persons filed criminal appeals against the aforesaid
conviction and sentence before the sessions court. These appeals were
dismissed vide judgment dated 03.09.2014. Mahendra Prasad Gupta, Nageshwar
Sharma, Madhusudan Banerjee and Binoy Kumar Mishra preferred separate
criminal revisions challenging the judgment of the sessions court which
were taken up together by the High Court and the High Court has maintained
the conviction and sentence by dismissing the said criminal revision
petitions vide common judgment dated 29.07.2016. It is this judgment which
is challenged by means of these four appeals preferred by the aforesaid
four accused persons.
It may be stated at the outset that there is no dispute on facts about the
happening of the aforesaid serious accident in which four persons received
fatal injuries and five others also suffered serious bodily injuries. In
the complaint that was filed by the complainant, Director of Mines Safety,
Dhanbad Region No.1, it was alleged that during the inspection and inquiry
by the complainant, following violations were found, which caused the
accident:
(i) In contravention of Systematic Support Rules (for short ‘SSR’) framed
and enforced under the provision of Regulation 108 of Central Mines Rules,
1957 read with Section 18(4) of the Act, the accused persons namely
Mahendra Prasad Gupta, Nageshwar Sharma, Binoy Kumar Mishra and Madhusudan
Banerjee failed to support the place of occurrence as per the said SSR.
(ii) In contravention of the above SSR, the accused No.5 i.e. Shankar
Prasad Mukherjee, Under Manager, Kusunda Colliery could not take steps for
making inspection of place of occurrence nor gave specific direction
pertaining to support the place of occurrence although condition of bad
roof was reported to him by Sri Chand Babu-Overman of Shift.
(iii) The accused-Overman Sri Chand Babu engaged the loaders at the place
of occurrence, which was not supported as per the terms of the SSR even
when the condition of bad roof was reported to him by the Overman of the
previous shift.
(iv) One of the accused Mining Sirdar Ambika Singh of the said Colliery
deployed the loaders without supporting the roof in terms of SSR.
It may also be recorded that the prosecution produced ample evidence in
support of its case that at the time of working in the said mine, some of
the workers found that the condition of the roof was bad and Mining Sirdar
Ambika Singh was even informed about the same expressing the apprehension
that roof may fall on them. Ambika Singh directed to call the dresser, who
came and reported that the condition of the roof was precarious. However,
Mining Sirdar dismissed the apprehensions by sharply reacting that he had
experience of twenty years in mining and nothing was going to happen. He
directed the loaders to continue the excavation. The workers even
protested and requested to give support to the place of occurrence but the
Mining Sirdar refused to listen to them. Immediately thereafter, the
occurrence took place. These findings arrived at by the trial court are
upheld by the first appellate court and the High Court has also affirmed
the same. As a consequence, violation of SSR has been established. The
case of the appellants, however, is that keeping in view their position, no
such criminal liability can be fastened upon them as they were not
responsible for the mishap either factually or in law.
Insofar as appellant Binoy Kumar Mishra (appellant in Criminal Appeal No.
246 of 2017) is concerned, he was holding the post of Manager at the
relevant time. Mr. Saurabh Kirpal, learned advocate arguing for him,
submitted that the courts below ignored that there were many exculpatory
facts of the case and legal error is committed in wishing them away and
basing the judgment only on the ground that burden of proof, as per the
provisions of the Act, was upon the appellants. According to him, following
important and material facts are sufficient to prove the innocence of the
appellant Binoy Kumar Mishra:
(i) The SSR under Regulation 108 were framed in the year 1993, which was
duly approved by the Directorate General of Mines Safety. This was prior
to the appointment of the appellant as a Manager.
(ii) The departmental inquiry, while holding the Mining Sirdar and the
Overman guilty, exonerated the appellant. The report also concluded that
the colliery had adequate arrangements.
(iii) The Director of Mines Safety (PW-1) in its deposition has attributed
specific role only to Ambika Singh. He had admitted that as a part of his
statutory duty, he had inspected the said mine on 27.12.1995.
(v) The prosecution has failed to show the specific provision under
Regulation 108 which the appellant had violated.
(vi) In the statement under Section 313 Cr.P.C., the appellant made a
categorical statement to the effect that full support of the roof was given
and that he was innocent.
(vii) There was no specific allegation or role attributable to the
appellant, much less evidence of neglect or omission on the part of the
appellant.
(viii) The appellant as a ‘Manager’ of the Colliery, had taken all due
diligence within his authority and control, without any culpable negligence
or omission for maintaining the safety in the mines.
Mr. Kirpal conceded that, no doubt, as per the provisions of Section 18(5)
of the Act, the burden of proof is upon the appellant. Notwithstanding, his
submission was that even when the principle of reverse burden of proof is
applied in a particular case, the obligation on the part of the prosecution
to prove the basic foundational facts very much remains, which has not been
discharged by the prosecution in the present case insofar as culpability of
the ‘Manager' is concerned. In support of his aforesaid proposition, he
referred to the judgment of this Court in Noor Aga v. State of Punjab &
Anr.[1] wherein the primary obligation of the prosecution is stated in the
following words:
“58. Sections 35 and 54 of the Act, no doubt, raise presumptions with
regard to the culpable mental state on the part of the accused as also
place the burden of proof in this behalf on the accused; but a bare perusal
of the said provision would clearly show that presumption would operate in
the trial of the accused only in the event the circumstances contained
therein are fully satisfied. An initial burden exists upon the prosecution
and only when it stands satisfied, would the legal burden shift. Even then,
the standard of proof required for the accused to prove his innocence is
not as high as that of the prosecution. Whereas the standard of proof
required to prove the guilt of the accused on the prosecution is “beyond
all reasonable doubt” but it is “preponderance of probability” on the
accused. If the prosecution fails to prove the foundational facts so as to
attract the rigours of Section 35 of the Act, the actus reus which is
possession of contraband by the accused cannot be said to have been
established.”
He also cited the following judgments on the same proposition:
(i) Bhola Singh v. State of Punjab[2]:
“11. Applying the facts of the present case to the cited one, it is
apparent that the initial burden to prove that the appellant had the
knowledge that the vehicle he owned was being used for transporting
narcotics still lay on the prosecution, as would be clear from the word
“knowingly”, and it was only after the evidence proved beyond reasonable
doubt that he had the knowledge would the presumption under Section 35
arise. Section 35 also presupposes that the culpable mental state of an
accused has to be proved as a fact beyond reasonable doubt and not merely
when its existence is established by a preponderance of probabilities. We
are of the opinion that in the absence of any evidence with regard to the
mental state of the appellant no presumption under Section 35 can be drawn.
The only evidence which the prosecution seeks to rely on is the appellant's
conduct in giving his residential address in Rajasthan although he was a
resident of Fatehabad in Haryana while registering the offending truck
cannot by any stretch of imagination fasten him with the knowledge of its
misuse by the driver and others.”
(ii) Babu v. State of Kerala[3]:
“27. Every accused is presumed to be innocent unless the guilt is proved.
The presumption of innocence is a human right. However, subject to the
statutory exceptions, the said principle forms the basis of criminal
jurisprudence. For this purpose, the nature of the offence, its seriousness
and gravity thereof has to be taken into consideration. The courts must be
on guard to see that merely on the application of the presumption, the same
may not lead to any injustice or mistaken conviction. Statutes like the
Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988;
and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide
for presumption of guilt if the circumstances provided in those statutes
are found to be fulfilled and shift the burden of proof of innocence on the
accused. However, such a presumption can also be raised only when certain
foundational facts are established by the prosecution. There may be
difficulty in proving a negative fact.”
(iii) Krishna Janardhan Bhat v. Dattatraya G. Hegde[4]:
“44. The presumption of innocence is a human right. (See Narendra
Singh v. State of M.P. [(2004) 10 SCC 699:2004 SCC (Cri) 1893], Ranjitsing
Brahmajeetsing Sharma v. State of Maharashtra [(2005) 5 SCC 294:2005 SCC
(Cri) 1057] and Rajesh Ranjan Yadav v. CBI [(2007) 1 SCC 70: (2007) 1 SCC
(Cri) 254]. Article 6(2) of the European Convention on Human Rights
provides: ‘Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.’ Although India is not bound
by the aforementioned Convention and as such it may not be necessary like
the countries forming European countries to bring common law into land with
the Convention, a balancing of the accused's rights and the interest of the
society is required to be taken into consideration. In India, however,
subject to the statutory interdicts, the said principle forms the basis of
criminal jurisprudence. For the aforementioned purpose the nature of the
offence, seriousness as also gravity thereof may be taken into
consideration. The courts must be on guard to see that merely on the
application of presumption as contemplated under Section 139 of the
Negotiable Instruments Act, the same may not lead to injustice or mistaken
conviction. It is for the aforementioned reasons that we have taken into
consideration the decisions operating in the field where the difficulty of
proving a negative has been emphasised. It is not suggested that a negative
can never be proved but there are cases where such difficulties are faced
by the accused e.g. honest and reasonable mistake of fact…”
It was also the submission of Mr. Kirpal that departmental inquiry was held
into this incident wherein culpability of only two persons, namely, Ambika
Singh and Sahid Akhtar Khan, was found and insofar as the appellant Binoy
Kumar Mishra is concerned, he was exonerated. Riding on these findings, he
submitted that Binoy Kumar Mishra had duly discharged the burden as
envisaged. Without prejudice to the above submissions, Mr. Saurabh Kirpal
pointed out that the unfortunate accident happened in the year 1996 and
that the appellant had been going through the ordeal for the past more than
twenty years. Furthermore, the provisions under which the appellant has
been convicted attracts a substantive sentence or fine. The appellant
holds a government post and custody for a period of over 24 hours would
lead to his suspension as per the rules. This would be completely
disproportionate to the role allegedly played by the appellant. He,
therefore, pleaded that a lenient view be taken.
Mr. Rakesh Dwivedi, learned senior counsel appearing for the appellant
Nageshwar Sharma (appellant in Criminal Appeal No. 247 of 2017), also made
his submission on the same lines. In addition, he referred to the
provisions of Section 2(c) of the Act which defines ‘agent’, in relation to
a mine. As per this definition, every person who takes part in the
management, control, supervision or direction of the mine or of any part
thereof is treated as ‘agent’, whether appointed as such or not. He
submitted that Nageshwar Sharma was not taking part in the management,
control, supervision or direction of the mine and, therefore, he was not
liable for the aforesaid accident. Mr. Dwivedi also submitted that a mere
perusal of the complaint would show that there is no specific allegation
against his client and only designation of the appellant Nageshwar Sharma
was mentioned therein with bald averment that he was exercising
supervision, management and control of the mine. According to him, that is
not sufficient to rope in the said appellant, having regard to the legal
position explained by this Court in G.N. Verma v. State of Jharkhand &
Anr.[5], in the following manner:
“20. Insofar as the criminal complaint is concerned, it does not contain
any allegation against G.N. Verma. The only statement concerning him is
that he was the Chief General Manager/deemed agent of the mine and was
exercising supervision, management and control of the mine and in that
capacity was bound to see that all mining operations were conducted in
accordance with the Act, the Rules, Regulations, Orders made thereunder. In
the face of such a general statement, which does not contain any
allegation, specific or otherwise, it is difficult to hold that the Chief
Judicial Magistrate rightly took cognizance of the complaint and issued
summons to G.N. Verma. The law laid down by this Court in Harmeet Singh
Paintal [National Small Industries Corpn. Ltd. v. Harmeet Singh Paintal,
(2010) 3 SCC 330 : (2010) 1 SCC (Civ) 677 : (2010) 2 SCC (Cri) 1113]
(though in another context) would be squarely applicable. Under the
circumstances, we are of the opinion that on the facts of this case and
given the absence of any allegation in the complaint filed against him no
case for proceeding against G.N. Verma has been made out.
xxx xxx xxx
24. The law is well settled by a series of decisions beginning with the
Constitution Bench decision in W.H. King v. Republic of India [AIR 1952 SC
156 : 1952 Cri LJ 836 : 1952 SCR 418] that when a statute creates an
offence and imposes a penalty of fine and imprisonment, the words of the
section must be strictly construed in favour of the subject. This view has
been consistently adopted by this Court over the last, more than sixty
years.”
He also submitted that no evidence was produced to show any culpable
negligence or omission on the part of Nageshwar Sharma. Further, none of
the courts below discussed his role specifically or the evidence against
him and convicted the appellant on unfounded presumptions. It was also
submitted that while recording the statement of the appellant under Section
313 of the Cr.P.C., only four questions were put to him and there was
inadequate opportunity to respond to the evidence which, in any case, does
not establish criminality and, therefore, it has resulted in failure of
justice.
Mr. Parijat Kishore, advocate who appeared for the appellant Mahendra
Prasad Gupta (appellant in Criminal Appeal No. 248 of 2017), made his
submission on the same lines.
Ms. Amrita Sharma, advocate assisted by Ms. Hetu Arora Sethi, appeared for
the appellant Madhusudan Banerjee (appellant in Criminal Appeal No. 249 of
2017). It was submitted that the accident report prepared by the Director
after inquiry did not attribute any lapse on the part of her client as it
found only Mining Sirdar Ambika Singh, Sahid Akhtar Khan and Shankar Prasad
Mukherjee liable for the accident. She further submitted that there was
only blanket and bald allegation against this appellant with no
specifications. She further argued that Mr. Banerjee had retired from
service fifteen years back and presently he is seventy five years of age
and is shrouded with lot of ailments including serious cardiac issues. He
recently, in October 2016, had an accident and fractured his hip bone.
Despite a surgery, he has been confined to the bed and cannot even go to
the toilet without help. Therefore, a fervent plea was made to take a
lenient view insofar as sentence is concerned, even if the contentions on
merits are not accepted.
Mr. Sinha, learned senior counsel, appearing for the respondent State,
submitted that all the four appellants were squarely covered by the
definition of ‘agent’ as contained in Section 2(c) of the Act as by the
very nature of their designation and duties, it was clear that they were
taking part in the management, control and supervision of the mine as well
as direction of the mine in question. He referred to the provisions of
Section 17 of the Act which deals with ‘Managers’ and, inter alia, lays
down that every mine shall be under a sole manager who shall have
prescribed qualifications and the owner or agent of every mine is supposed
to appoint a person having such qualifications to have the Manager. He,
thus, argued that Manager is the only person who is responsible for the
overall management, control, supervision and direction of the mine. Mr.
Sinha also relied upon the provisions of sub-sections (4) and (5) of
Section 18 of the Act. Section 18 of the Act pertains to duties and
responsibilities of owners, agents and managers. Sub-section (4) thereof
provides that the owner, agent and manager of every mine would be
responsible to see that all the operations carried on in connection with
the mine are conducted in accordance with the provisions of the Act, the
regulations, rules, bye-laws and orders made thereunder. Sub-section (5)
makes owner, agent or manager responsible for contravention of any of the
provisions of the Act or the regulations, rules, bye-laws or orders made
thereunder. He, thus, argued that a conjoint reading of the aforesaid
provisions makes the appellants liable in the absence of any evidence led
by them to show that the presumptions contained in the aforesaid provisions
were not applicable.
Mr. Rana Mukherjee, learned senior counsel who appeared for respondent
No.2, has supported Mr. Sinha and referred to the evidence which, according
to him, proves the culpability of the appellants as well.
In order to appreciate the respective contentions of the learned counsel
for the parties appearing on either side, it would be apposite to take note
of the relevant provisions of the Act as well as Regulations framed
thereunder which are pressed into service by the counsel for the parties.
These provisions are as under:
“ 2(c) "agent", when used in relation to a mine, means every person,
whether appointed as such or not, who, acting or purporting to act on
behalf of the owner, takes part in the management, control, supervision or
direction of the mine or of any part thereof;
xxx xxx xxx
2(l) “owner”, when used in relation to a mine, means any person who is the
immediate proprietor or lessee or occupier of the mine or of any part
thereof and in the case of a mine the business whereof is being carried on
by a liquidator or receiver, such liquidator or receiver 11[***] but does
not include a person who merely receives a royalty, rent or fine from the
mine, or is merely the proprietor of the mine, subject to any lease, grant
or licence for the working thereof, or is merely the owner of the soil and
not interested in the minerals of the mine; but 12[any contractor or sub-
lessee] for the working of a mine or any part thereof shall be subject to
this Act in like manner as if he were an owner, but not so as to exempt the
owner from any liability;
xxx xxx xxx
2(o) “regulations”, “rules” and “bye-laws” means respectively regulations,
rules and bye-laws made under this Act;
xxx xxx xxx
17. Managers.— (1) Save as may be otherwise prescribed, every mine shall be
under a sole manager who shall have the prescribed qualifications and the
owner or agent of every mine shall appoint a person having such
qualifications to be the manager:
Provided that the owner or agent may appoint himself as manager if he
possesses the prescribed qualifications.
(2) Subject to any instructions given to him by or on behalf of the owner
or agent of the mine, the manager shall be responsible for the overall
management, control, supervision and direction of the mine and all such
instructions when given by the owner or agent shall be confirmed in writing
forthwith.
(3) Except in case of an emergency, the owner or agent of a mine or anyone
on his behalf shall not give, otherwise than through the manager,
instructions affecting the fulfilment of his statutory duties, to a person,
employed in a mine, who is responsible to the manager.]
xxx xxx xxx
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 (d), (e) and (p) of section 58 shall be exclusively
carried out by the owner and agent of the mine 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 under sub-section (3) of section
17, results in the contravention of the provisions of this 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 sub-sections (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 orders 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 thing or prohibit any person from doing an act or thing, besides
the person who contravenes, each of the following persons shall also be
deemed to be guilty of such contravention unless he proves that he had used
due diligence to secure compliance with the provisions and had taken
reasonable means to prevent such contravention:—
(i) the official or officials appointed to perform duties of supervision in
respect of the provisions contravened;
(ii) the manager of the mine;
(iii) the owner and agent of the mine;
(iv) 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.].”
We further notice that Chapter V comprising of Sections 19 to 27 of the Act
contains provisions as to health and safety. Section 23 thereof casts an
obligation on the owner, agent or manager of the mine to give notice of
accidents of the nature mentioned therein. Section 24 of the Act empowers
the Government to appoint court of inquiry in case of accidents. Section
57 of the Act confers power on the Central Government to make Regulations
for all or any of the purposes stipulated therein by notification in the
official gazette. Under Section 58 of the Act, the Central Government is
empowered to make Rules for all or any of the purposes mentioned in that
Section. Under section 60 of the Act, the Central Government is empowered
to make Regulations by dispensing with the publication under certain
circumstances. Section 61 of the Act authorises owner, agent or manager of
mine to draft such bye-laws, not being inconsistent with the Act or any
Regulations or Rules for the time being in force, governing the use of any
particular machinery or the adoption of any particular method in the mine.
However, when called upon to do so by the Chief Inspector or Inspector,
framing of such draft bye-laws becomes obligatory. Chapter IX provides for
penalties and procedure and it covers Sections 63 to 81 of the Act. As the
appellants herein along with other accused persons were charged for
offences under Sections 72A, 72C(1)(a) and 72C(1)(b), these provisions are
reproduced hereunder:
“72A. Special provision for contravention of certain regulations.— Whoever
contravenes any provision of any regulation or of any bye-law or of any
order made thereunder, relating to matters specified in clauses (d), (i) ,
(m), (n), (o), (p), (r), (s), and (u) of section 57 shall be punishable
with imprisonment for a term which may extend to six months, or with fine
which may extend to two thousand rupees, or with both.]
72C. Special provision for contravention of law with dangerous
results.—(1) Whoever contravenes any provision of this Act or of any
regulation, rule or bye-law or of any order made thereunder [other than an
order made under sub-section (1A) or sub-section (2) or sub-section (3) of
section 22] 2[or under sub-section (2) of section 22A], 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; or
if such contravention results in serious bodily injury, with imprisonment
which may extend to one year, or with fine which may extend to three
thousand rupees, or with both; or
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, he 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, or, if any appeal has been presented,
before the decision of the appeal.]”
As already noted above, the accident was a result of fall of roof, which
was under dilapidated condition, thereby crushing to death four persons and
causing serious bodily injuries to five workers. When the accident was
reported and the inquiry conducted, respondent No.2 submitted the report as
per which it was found during inspection that entire junction that fell
down was practically without support. A steel cog had been provided at
east level. This report also analysed the evidence which was collected
during inquiry and made observations thereupon in para 9 with clear
findings that the accident had resulted due to the negligence and bad
maintenance. Some of the observations in this behalf are reproduced below:
“9.0 ANALYSIS OF EVIDENCE AND OBSERVATIONS MADE
9.1 The Manager had framed SSR based on experience and other guidelines
but not on scientific studies including RMR needed to evaluate the support
requirement.
9.2 The roof that fell was kept supported barely by nine roof bolts in the
face and no support was provided at the junction. The area of fall was
about 28 sq. m and according to the SSR enforced this area should have been
supported by about 22 bolts against which only nine were provided.
Obviously the support provided was inadequate.
9.3 The SSR required roof bolts at junction to be reinforced by W straps
which are basically steel channels. No such W strap was used in the
junction where the fall took place. Infact W strap was not used in any
junction of the district.
xxx xxx xxx
9.6 That the roof at the place of accident could be bad was identified by
the Overman of second shift Shri Chand Babu. He accordingly informed his
relieving Overman Shri Saheed Akhtar Khan and also the Under Manager Shri
S.P. Mukherjee while handing over charge at the end of the second shift.
He also recorded his observations in his statutory record book maintained
under regulation 43(9) of CMR’57. Similarly the Sirdar Shri Ambika Singh
was informed by his relieving Sirdar of second shift Shri Rajendra Kumar
that the roof at the place of accident was bad and required dressing. Thus
that the roof at the place of accident could be bad was known to the
Sirdar, Overman and Under Manager of third shift. After shotfiring in
those faces the dressers Shri Sukhalu Bhor as well as the loaders engaged
there told the Sirdar Shri Ambika Singh that the roof was bad and needed
support. Yet the Sirdar deployed the loaders without providing any support
which finally led to the accident.
xxx xxx xxx
9.15 Thus it can be concluded that the fall had taken place due to
association with geological disturbances and not providing support as per
the requirement of SSR.”
In this report, responsibilities of various persons is also fixed, in the
following manner:
“11.0 RESPONSIBILITY
11.1 The Sirdar Shri Ambika Singh deployed the loaders in the faces
without supporting the roof with roof bolting and a steel cog in spite of
learning from the previous shift that the roof could be bad and even after
the affected loaders had expressed apprehension about the stability of the
roof and requested him to support the same. He therefore knowingly
contravened the provision of Regulation of 44(1)(b) and 44(3)(c) read with
the SSR framed under Regulation 108 of the Coal Mines Regulation, 1957 and
is thus primarily responsible for the accident.
xxx xxx xxx
11.4 The manager Shri Vinay Kumar Mishra could not ensure the part of the
mine where the accident took place was not worked without support in
contravention of the SSR enforced and in contravention of Regulation of
108(5) of CMR’57. He is also responsible for the accident.
11.5 Shri Madhu Sudan Banerjee who was the Agent of that particular mine
only took part in the management, control, supervision and direction of the
mine in a regular manner could not ensure that the part of the mine where
the accident took place was not worked without support in contravention of
SSR enforced under Regulation 108 of CMR’57 read with Section 18(4) of the
Mines Act, 1952. He is also therefore responsible for the accident.
11.6 Shri N Sharma, Additional General Manager and Shri M K Gupta, General
Manager, Kusunda Area though not appointed as such took part in management,
control, supervision and direction of the mine through regular interaction
and therefore they were also agents. They had six mines under them and
they exercised management control, supervision of the mine but they failed
to ensure that the place where the accident took place was not worked
without support in contravention of SSR enforced under Regulation 108 of
CMR’57 read with Section 18(4) of the Mines Act, 1952 and are therefore
responsible for the accident.
11.7 The Systematic Support Rules enforced under regulation 108(1)(bb)
required freshly exposed roof to be supported by 3 bolts at distance of 1.2
m. all the junctions within 10 m of the face was required to be supported
by W strap on bolts. It also required that before loading cola, roof
bolting shall be done so that freshly roof is supported. In this case none
of the junctions including the one where the accident took place was
supported by W straps. The roof bolts were also installed haphazardly and
not in a systematic manner. The distance between the bolts was also more
than 1.2 m at many places. Therefore the Manager and Agents including the
Addl. General Manager and General Manager were aware that the Systematic
Support Rules was not being fully enforced, the violation of which lead to
the accident. Therefore they are also responsible for the accident.”
In other paras, Ambika Singh, Sahid Akhtar Khan and Shankar Prasad
Mukherjee are also fastened with the responsibility. They have also been
convicted and as they have not laid further challenge to their conviction
after the dismissal of their appeals. Therefore, we have not reproduced
the findings qua them.
We may mention that the evidence which was led by the prosecution in
support of its case qua all the accused persons is on the same lines on
which liability is fastened on these persons in the aforesaid report. With
these preliminary remarks, we advert to the case of each of the appellants.
Insofar as appellant Binoy Kumar Mishra is concerned, as pointed out above,
it was argued that report dated 09.01.1996 of the aforesaid fatal accident
was submitted wherein only Mining Sirdar Ambika Singh and Overman Sahid
Akhtar Khan were held responsible. From this, it was sought to project
that Binoy Kumar Mishra was found innocent. That, however, is only a
report of the accident which is required to be submitted under Section 23
of the Act. When the notice of accident is received, it is thereafter that
the Government appoints a commission of inquiry as per the provisions of
Section 24 of the Act. Such a commission of inquiry was appointed, which
submitted its report dated 28.06.1996, relevant portions whereof have
already been extracted above. As per this report, failure on the part of
Mr. Mishra is attributed in not able to enforce SSR and also contravening
Regulation 108(5) of CMR, 1957 and on that basis he is held responsible for
the accident. It was submitted by the learned counsel appearing for Mr.
Mishra that these SSR were framed in the year 1993, i.e. prior to the
appointment of Mr. Mishra as a Manager, and were duly approved by the
Director General of Mines Safety. It was further argued that insofar as
alleged violation of Regulation 108 is concerned, no specific provision
under the said Regulation was shown to have been violated by him. However,
the charge against Mr. Mishra is not that he was instrumental in faulty
drafting of SSR. The charge, in fact, pertains to the contravention of the
SSR with imputation that a part of mine where the accident took place was
not working without support and that was in violation of the SSR. However,
what was the specific act of contravention is not stated by the prosecution
witnesses. There is omnibus allegation about the contravention.
On perusal of the judgment of the trial court, it can be discerned that the
trial court formulated the following points which needed determination:
(i) Whether there was any mining operation going on at the relevant time
and place of occurrence and whether at that time all the above-named
accused persons bear a reasonable post for conducting the same?
(ii) Whether during the operation of the said mining work, is there any
occurrence that took place on the said Kusunda Colliery which resulted in
the death of four workers and serious bodily injuries to five other?
(iii) Whether the said incident, if any, taken place and caused serious
injury and bodily pain to the workers of the said coal mine happened on the
willful neglect and omission of any provision of law, rules, regulation and
orders of the Mines Act for which the above named accused persons are
liable or not?
The findings on the first two points were in the affirmative which have
been established on the basis of evidence and is not required to be gone
into. This has already been stated by us. Insofar as third point is
concerned, the trial court found that the accident in which certain persons
lost their lives and certain other persons suffered serious injury and
bodily pain was the result of neglect and omission of the provisions of
Orders under the Act. These findings were upheld by the first appellate
court. The High Court has rightly pointed out that while exercising
revisionary jurisdiction, powers of the High Court were limited and it was
not supposed to go into the correctness of the aforesaid findings unless
the same are perverse. That is not even argued in this Court as well by
the appellants. The question is, as mentioned above, whether these
appellants are also responsible for the aforesaid mishap? Section 18 of the
Act deals with duties and responsibilities of owners, agents and managers
and sub-section (4) thereof casts upon the owner, agent and manager
responsibility to see that all operations carried on in connection with the
mine are conducted in accordance with the provisions of the Act and of the
regulations, rules, bye-laws and orders made thereunder. Sub-section (5)
contains the provisions of strict liability by making persons specified
therein as ‘deemed guilty’ for contravention of the provisions of the Act
or of the regulations, rules, bye-laws or orders made thereunder. It
excludes only those of the aforesaid provisions where responsibility is
cast specifically on a particular person to do any act or thing or prohibit
any person from doing an act or thing. Apart from those who actually
contravene such provisions, following persons are deemed to be guilty of
such contravention unless that person proves that he had used due diligence
to secure compliance with the provisions and have to prevent contravention:
“(i) the official or officials appointed to perform duties of supervision
in respect of the provisions contravened;
(ii) the manager of the mine;
(iii) the owner and agent of the mine;
(iv) 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.”
Further, sub-section (5) of Regulation 108 which relates to SSR cast
specific responsibility upon the manager in the following manner:
“(5) The Manager and such supervising officials shall be responsible for
securing effective compliance with the provisions of the Systematic Support
Rules, and no mine or part of a mine shall be worked in contravention
thereof.”
Specific responsibility is, therefore, laid upon the manager to ensure that
no mine or part of a mine shall be worked in contravention of SSR and the
provisions of SSR are to be effectively complied with. A cumulative
reading of the aforesaid provisions, coupled with the provision of strict
liability, would reveal that it was for Mr. Mishra to show as to how he had
discharged his responsibility under the aforesaid provisions and was not
responsible for the occurrence in any manner. In the report dated
12.02.1996 submitted after conducting the inquiry, as per the mandate of
Section 24 of the Act, it was specifically found that he had contravened
the provisions of sub-regulation (5) of Regulation 108. This material
placed by the prosecution was sufficient to discharge the initial burden
that exists upon the prosecution, as per the law laid down in the cases of
Noor Aga, Bhola Singh, Babu and Krishna Janardhan Bhat and had been duly
discharged by the prosecution. Legal burden, thereby, stood shifted upon
him to prove his innocence. However, in his defence not even an iota of
evidence was produced by him. Therefore, no fault can be found in the
approach of the courts below in convicting him.
Coming to the case of Madhusudan Banerjee, he was nominated as ‘agent’ of
that very mine where the accident had occurred. In respect of Mr.
Banerjee, evidence was produced to show that he took part in the
management, control, supervision and direction of the mine in a regular
manner and could not ensure that the mine was worked in accordance with SSR
and falls under Regulation 108 and had contravened Section 18(4) of the
Act. Thus, in his case also, initial burden stood discharged by the
prosecution by placing adequate material against him. However, he failed
to discharge his onus as per Section 18(4) of the Act. It was for him to
show that he did not take part in the management, control, supervision or
direction of the mine, which he failed to do.
Mahendra Prasad Gupta and Nageshwar Sharma were working as General Manager
and Additional General Manager respectively. In respect of these two
persons, following responsibilities are fastened as per the report:
“11.6 Shri N Sharma, Additional General Manager and Shri M K Gupta,
General Manager, Kusunda Area though not appointed as such took part in
management, control, supervision and direction of the mine through regular
interaction and therefore they were also agents. They had six mines under
them and they exercised management control, supervision of the mine but
they failed to ensure that the place where the accident took place was not
worked without support in contravention of SSR enforced under Regulation
108 of CMR’57 read with Section 18(4) of the Mines Act, 1952 and are
therefore responsible for the accident.”
The aforesaid part of the report accepts that they were neither appointed
as agent nor manager. They were not the managers of the mines either.
Therefore, they are not covered by sub-section (4) of Section 18 of the
Act. Though, it is alleged that they took part in management, control,
supervision and direction of the mine, and on that basis, they are treated
as ‘agents’. The prosecution did not produce any material to substantiate
the aforesaid or mention the basis for this conclusion. In order to make
them liable, it was necessary to show that they had contravened the
provisions of the Act or of Regulations, Rules, Bye-Laws made thereunder.
They are also not covered under the categories of those persons which are
specified in sub-section (5) of Section 18 of the Act. We are, therefore,
of the opinion that it was not appropriate to convict these two appellants
and their conviction is accordingly set aside.
With this we advert to the question of sentence that is given by the courts
below to Binoy Kumar Mishra and Madhusudan Banerjee. It was argued by the
learned counsel for these two appellants that having regard to certain
extenuating factors, even if the conviction is maintained, they may be
fastened with the sentence of fine only.
We are inclined to accept this submission of the counsel for
these two appellants.
No doubt, the incident was unfortunate, but it is an old incident which
occurred more than 20 years ago. No doubt, Binoy Kumar Mishra was holding
the post of Manager and in that capacity he was supposed to exercise due
diligence. At the same time, mine was under the direct control of other
three persons who stand convicted and in respect of whom the conviction and
sentence has become final. The only role attributed to him was that he
acted in violation of SSR. The fault on his part was more in the nature of
negligence in performance of his duties and that he could have exercised
little more diligence.
Insofar as Madhusudan Banerjee is concerned, no doubt, he was an ‘agent’
and, therefore, was directly responsible to ensure that safety measures are
taken. However, we find that he retired from service 15 years ago. He is
75 years of age and is suffering from various ailments, including heart
disease. He met with an accident in October 2016 and fractured his hip
bone because of which he is confined to bed and cannot even go to toilet
without help.
Keeping in view the aforesaid circumstances in respect of these two
appellants, we are of the opinion that the interest of justice would be
subserved by imposing the sentence of fine only.
Conviction under Section 72A of the Act entails maximum imprisonment of six
months or with fine which may extend to Rs.2,000/-, or with both.
Likewise, Section 72C(1)(a) stipulates imprisonment which may extend to two
years or with fine which may extend to Rs.5,000/- or with both. Section
72C(1)(b), likewise, prescribes maximum imprisonment of one year or with
fine which may extend to Rs.3,000/-, or with both. The sentences imposed
by the trial court are modified in respect of these two appellants by
substituting the sentence of maximum fine prescribed under the aforesaid
provisions, which would be Rs.2,000/-, Rs.5,000/- and Rs.3,000/-
respectively.
In the result, appeals filed by Binoy Kumar Mishra (Criminal Appeal No. 246
of 2017) and Madhusudan Banerjee (Criminal Appeal No. 249 of 2017) are
partly allowed to the extent of sentence only, as mentioned above. The
appeals of Mahendra Prasad Gupta (Criminal Appeal No. 248 of 2017) and
Nageshwar Sharma (Criminal Appeal No. 247 of 2017) are allowed thereby
setting aside their conviction and sentence.
No costs.
.............................................J.
(A.K. SIKRI)
.............................................J.
(R.K. AGRAWAL)
NEW DELHI;
MARCH 31, 2017.
-----------------------
[1] (2008) 16 SCC 417
[2] (2011) 11 SCC 653
[3] (2010) 9 SCC 189
[4] (2008) 4 SCC 54
[5] (2014) 4 SCC 282