Heard learned counsel appearing for the petitioners and learned counsel appearing for the State.

2. This application has been filed for quashing of the entire criminal proceeding of Jharia (Bhrragarh) P.S. Case no.308 of 2008 including the order dated 16.8.2010 whereby and whereunder cognizance of the offences punishable under Section 337, 338, 287, 304(A) of the Indian Penal Code and also under Section 72(c) of the Mines Act has been taken against the petitioners.

3. Before adverting to the submission advanced on behalf of the parties, case of the prosecution needs to be taken notice of.

4. It is the case of the prosecution that one Gopal Chandra Mahto, son of the informant, Gobind Ram Mahto while was working as Loader in Burragarh Colliery, roof of the colliery caved in, as a result of which Gopal Chandra Mahto sustained injury. Thereupon he was removed to Hospital, where he succumbed to injuries. According to the informant, this occurrence took place as the Manager had not taken step for adequate safety for the workmen.

5. On such allegation, a case was lodged as Jharia (Bhrragarh) P.S. Case no.308 of 2008 under Sections 337, 338, 287, 304(A) of the Indian Penal Code and also under Section 72(c) of the Mines Act. Upon submission of the charge sheet, when cognizance of the offence was taken on 16.8.2010, the same was challenged before this Court.

6. Mr. Rajan Raj, learned counsel appearing for the petitioners submits that whatever allegation is there in the FIR that is the subject matter of prosecution under the Mines Act, the special legislation which will have overriding effect over the general law and therefore, any prosecution cannot be maintained for the offence under the Indian Penal Code.

7. Further it was submitted that so far as the offence under Section 72(c) of the Mines Act is concerned, that cannot be maintained against the petitioners no.1 to 3, namely, P.R. Mukhopadhyay @ Pramod Ranjan Mukhopadhyay, Tarun Kanti Chakraborty and Rajmuni Ram, who happens to be the Managers of the colliery in view of the provision as contained in Section 75 of the Mines Act which does prescribe that prosecution of owner, agent or manager of the establishment cannot be instituted except at the instance of the Chief Inspector or the District Magistrate or an Inspector authorized in this behalf by general or special order in writing by the Chief Inspector and thereby the court has committed illegality in taking cognizance of the offences of the Indian Penal code and also under Section 72(c) of the Mines Act against the petitioners no.1 to 3, namely, P.R. Mukhopadhyay @ Pramod Ranjan Mukhopadhyay, Tarun Kanti Chakraborty and Rajmuni Ram.

8. Further it was submitted that so far petitioners no.4 and 5 are concerned, who are the Overman and Assistant Manager, they also cannot be prosecuted for the offences under the Indian Penal Code.

9. At the same time, prosecution under Section 72(c) of the Mines Act in absence of any allegation that on account of negligent act of those petitioners, accident took place cannot be maintained.

10. A counter affidavit has been field on behalf of the opposite party wherein it has been stated in categorical terms that the petitioners were negligent in not providing support system which is essential where mining work was undergoing and because of this negligent conduct and act, roof of the mines caved in, as a result of which, one of the workmen died.

11. Thus, the stand which has been taken on behalf of the petitioners is that none of the petitioners can be prosecuted under the offences of the Indian Penal Code whereas the stand which has been taken on behalf of the opposite party is that since negligent act was there on the part of the petitioners, they can very well be prosecuted even for the offence under the Indian Penal Code.

12. In the context of the stand taken on behalf of the parties, one needs to take notice of the provision as contained in Section 4 of the Code of Criminal Procedure which