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Monday, April 3, 2017

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.



                                                              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

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