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2017 Supreme(SC) 339
SUPREME COURT OF INDIA
A.K. Sikri, R.K. Agrawal, JJ.
Binoy Kumar Mishra – Appellants
Versus
State of Jharkhand and Another – Respondents
Criminal Appeal No. 246 of 2017 With Criminal Appeal No. 247 of 2017, Criminal Appeal No. 248 of 2017 And Criminal Appeal No. 249 of 2017
Decided On : 31-03-2017
For the Appellants : Amit K. Nain, Mritunjay Kumar Sinha, Parijat Kishore, Ms Hetu Arora Sethi, Advs.
For the Respondents: Ajit Kumar Sinha, Sr. Adv., Devashish Bharuka, Ms. Arpita Bishnoi, Ravi Bharuka, Ms. Jennifer Xavier, Rana Mukherjee, Sr. Adv., Shiv Mangal Sharma, Advs.
IMPORTANT POINT
In view of mitigating factors, sentence of imprisonment can be substituted by fine.
Headnote:Mines Act, 1952 – Sections 72A, 72C(1)(a) and 72C(1)(b) – Death of miners in mining accident – Conviction and sentence – 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 – Specific responsibility is laid upon manager to ensure that no mine or part of a mine shall be worked in contravention of SSR and provisions of SSR are to be effectively complied with – It was for appellant to show as to how he had discharged his responsibility under the provisions and was not responsible for occurrence in any manner – In report submitted after conducting inquiry, it was specifically found that he had contravened provisions of sub-regulation (5) of Regulation 108 – This material placed by prosecution was sufficient to discharge initial burden that exists upon 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 – No fault can be found in approach of courts below in convicting him – It is an old incident which occurred more than 20 years ago – Appellant was holding post of Manager and in that capacity he was supposed to exercise due diligence – At the same time, mine was under direct control of other three persons who stand convicted and in respect of whom conviction and sentence has become final – Only role attributed to him was that he acted in violation of SSR – Fault on his part was more in nature of negligence in performance of his duties and that he could have exercised little more diligence – He retired from service 15 years ago – He is 75 years of age and is suffering from various ailments – Interest of justice would be subserved by imposing sentence of fine only – Sentence of imprisonment substituted by fine. (Paras 18, 26, 27, 31 to 35)
Facts of Case:
Mining accident resulting in death of four miners. Each of 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 offence under Section 72C(1) (b) coupled with direction that all sentences would run concurrently. For default of payment of fine, additional rigorous imprisonment for six months was also imposed. High Court has maintained conviction and sentence by dismissing criminal revision petitions vide impugned common judgment.
Findings of Court:
Conviction under Section 72A of 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. Sentences imposed by trial court are modified in respect of these two appellants by substituting sentence of maximum fine prescribed under the aforesaid provisions, which would be Rs. 2,000/-, Rs. 5,000/- and Rs. 3,000/- respectively.
Result : Appeals Partly allowed.
JUDGMENT
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:
(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 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.
3. 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.
4. 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
