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PATNA HIGH COURT
S.K.Das, Narayan and B.P.Jamuar JJ.
State Of Bihar
Versus
Kunja Behari Chandra
Criminal Reference No. 1 of 1952 ;
Criminal Revision No. 877 of 1952 ; 878 of 1952 ; 1202 of 1952 ;
Decided On : APRIL 29, 1954
The reference of a case to the High Court under Sec. 432, Criminal P. C. is incompetent where there is involved a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation. The question for determination in such cases is regarding the validity of certain Rules framed under an Act, namely, the Indian Mines Act, 1923. Reference was, therefore, discharged as incompetent. The Mines Creche Rules, 1946, as also the Pithead Bath Rules, 1946, framed by the Central Government in exercise of the powers conferred upon it by Sub-section (bbb) of Sec.30, Coal Mines Act (4 of 1923) are ultra vires and without jurisdiction in part, if not in entirety. The rules are in excess of the powers conferred to frame rules under Sec.30(bb), and these rules are not severable from the other rules. The Rules as a whole, therefore, must be considered invalid. The convictions of the petitioners and the sentences imposed upon them were set aside and the fines if paid, were refunded.
Fact of the Case:
The reference has been made by the Subordinate Judge, Special Magistrate of Dhanbad and it purports to be under Sec. 432, Criminal P. C., as re-enacted by the Codes of Civil and Criminal Procedure (Amendment) Act, 1951. In the court of the Special Magistrate, there are pending four criminal cases, being Nos. 19/1 of 1951/52, 20/2 of 1951/52 17/3 Of 1951/52 and 149/4 of 1950/52, and they are being tried together with the consent of the parties as similar questions of law arise in each of them. The accused persons in those cases are colliery owners and managers.
Finding of the Court:
The reference of a case to the High Court under Sec. 432, Criminal P. C. is incompetent where there is involved a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation. The question for determination in such cases is regarding the validity of certain Rules framed under an Act, namely, the Indian Mines Act, 1923. Reference was, therefore, discharged as incompetent. The Mines Creche Rules, 1946, as also the Pithead Bath Rules, 1946, framed by the Central Government in exercise of the powers conferred upon it by Sub-section (bbb) of Sec.30, Coal Mines Act (4 of 1923) are ultra vires and without jurisdiction in part, if not in entirety. The rules are in excess of the powers conferred to frame rules under Sec.30(bb), and these rules are not severable from the other rules. The Rules as a whole, therefore, must be considered invalid. The convictions of the petitioners and the sentences imposed upon them were set aside and the fines if paid, were refunded.
Issues: Whether the reference of a case to the High Court under Sec. 432, Criminal P. C. is competent where there is involved a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation?
Ratio Decidendi: The question for determination in such cases is regarding the validity of certain Rules framed under an Act, namely, the Indian Mines Act, 1923. Reference was, therefore, discharged as incompetent. The Mines Creche Rules, 1946, as also the Pithead Bath Rules, 1946, framed by the Central Government in exercise of the powers conferred upon it by Sub-section (bbb) of Sec.30, Coal Mines Act (4 of 1923) are ultra vires and without jurisdiction in part, if not in entirety. The rules are in excess of the powers conferred to frame rules under Sec.30(bb), and these rules are not severable from the other rules. The Rules as a whole, therefore, must be considered invalid. The convictions of the petitioners and the sentences imposed upon them were set aside and the fines if paid, were refunded.
Final Decision: The reference of a case to the High Court under Sec. 432, Criminal P. C. is incompetent where there is involved a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation. The question for determination in such cases is regarding the validity of certain Rules framed under an Act, namely, the Indian Mines Act, 1923. Reference was, therefore, discharged as incompetent. The Mines Creche Rules, 1946, as also the Pithead Bath Rules, 1946, framed by the Central Government in exercise of the powers conferred upon it by Sub-section (bbb) of Sec.30, Coal Mines Act (4 of 1923) are ultra vires and without jurisdiction in part, if not in entirety. The rules are in excess of the powers conferred to frame rules under Sec.30(bb), and these rules are not severable from the other rules. The Rules as a whole, therefore, must be considered invalid. The convictions of the petitioners and the sentences imposed upon them were set aside and the fines if paid, were refunded.
Jamuar, J.
1. The reference and the applications in revision have been heard together and they will be governed by this one judgment.
2. The reference has been made by the Subordinate Judge, Special Magistrate of Dhanbad and it purports to be under Sec. 432, Criminal P. C., as re-enacted by the Codes of Civil and Criminal Procedure (Amendment) Act, 1951. In the court of the Special Magistrate, there are pending four criminal cases, being Nos. 19/1 of 1951/52, 20/2 of 1951/52 17/3 Of 1951/52 and 149/4 of 1950/52, and they are being tried together with the consent of the parties as similar questions of law arise in each of them. The accused persons in those cases are colliery owners and managers.
3. In cases Nos. 19/1 and 20/2 of 1951/52, the colliery involved is one Kirkend Colliery. On the 11th October, 1950, one Miss Gulati, an Assistant Inspectress, went to inspect that colliery and she found that neither any pithead bath had been constructed at the colliery as required under the Coal Mines Pithead Bath Rules, 1946, nor any creche as required by the the Mines Creche Rules, 1946 . The Mines Creche Rules have been made by the Central Government in exercise of the powers conferred upon it by Sub-section Cbb) of Sec.30, Coal Mines Act (4 of 1923) and the Coal Mines Pithead Bath Rules have also been made by the Central Government in exercise of the powers conferred by Sub-section (bbb) of Section 30 of that Act. Rule 3 (a) of the Mines Creche Rules provides that the owner of every mine shall construct thereat a creche in accordance with plans prepared in conformity with these Rules and previously approved by the competent authority; and Rule 3(1) of the Coal Mines Pithead Bath rules provides that the owner of every coal mine shall construct thereat a pithead bath in accordance with plans prepared in conformity with these Rules and approved by the competent authority. Accordingly, the colliery owners and the manager are being prosecuted under Sec.39, Indian Mines Act, 1923 for contravening the provisions of Rule 3(a) of the Mines Creche Rules, and this prosecution has given rise to Case No. 19/1 of 1951/52; and they are further being prosecuted under Sec.39, Indian Mines Act for a contravention of Rule 3(1) of the Coal Mines Pithead Bath Rules, and this has given rise to Case No. 20/2 of 1951/52.
4. In Case No. 17/3 of 1951/52, the colliery Involved is Benedih Colliery. The Junior Labour Inspector, D. C. Bhattacharjee, had gone to inspect this colliery on the llth December, 1950, and he also found that neither any pithead bath had been constructed in this colliery as required by Rule 3(1) of the Coal Mines Pithead Bath Rules nor any Creche as required by Rule 3A of Mines Creche Rules. The colliery owner and the manager are, therefore, being prosecuted in this case under Sec.39, Indian Mines Act for the contravention of Rule 3(a), Mines Creche Rules. No prosecution, however, appears to have been launched for the contravention of Rule 3(1) of the Pithead Bath Rules.
5. In Case No. 149/4 of 1950/52, the colliery in question is Ramkanali Colliery. In this case, the Junior Inspector, M. R. Gaikwar had inspected the colliery on 23-8-1950, and he found that pithead baths had not been constructed as required by the Pithead Bath Rules, nor any creche had been constructed as required by the Mines Creche Rules. This case is in respect of the prosecution of the owner and the manager under Sec.39, Mines Act, for the contravention of Rule 3(a) of the Mines Creche Rules. Here again no prosecution has been launched for contravention of Rule 3(1) of the Pithead Bath Rules.
6. On behalf of the defence, in all these cases, a common ground in respect of the validity of the Mines Creche Rules, 1946 , as also of the Pithead Bath Rules, 1946, was taken before the Special Magistrate. Hence, he had made a reference to those cases to this Court, as staged above under Sec. 432 of the Code of Criminal Procedure in the following words :
"It is clear t
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