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TMI Blog2017 (4) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p 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: (i) Mahendra Prasad Gupta, General Manager (ii) Nageshwar Sharma, Additional General Manager (iii) Madhusudan Banerjee, Agent (iv) Binoy Kumar Mishra, Manager (v) Shankar Prasad Mukherjee, Underman (vi) Saheed Akhtar Khan, Overman (vii) Ambika Singh, Mining Sirdar 2. 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 5. 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anager 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. 7. 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. (2008) 16 SCC 417 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 (2008) 4 SCC 54: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2014) 4 SCC 282, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceiver 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed 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.]. 17. 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 stipulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.] 18. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... association with geological disturbances and not providing support as per the requirement of SSR. 19. 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, superv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of each of the appellants. 22. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 28. 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. 29. The aforesaid part of the report a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 34. Conviction under Section 72A of the Act entails maximum imprisonment of six months or with fine which may extend to ₹ 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 ₹ 5,000/- or with both. Section 72C(1)(b), likewise, prescribes maximum imprisonment of one year or with fine which may extend to ₹ 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 ₹ 2,000/-, ₹ 5,000/- and ₹ 3,000/- respectively. 35. 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 A ..... 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