Public servants not removable from office save by or with the sanction of the Government are not entitled to protection under Section 197 of the Cr.P.C. and Section 79 of the Mines Act.

1. Heard learned counsel for the petitioners and learned counsel for the opposite parties.

2. The petitioners are aggrieved by order dated 23.12.2011 passed by Ms. Richa Srsivavata, learned Judicial Magistrate 1st Class, Dhanbad, in C.M.A. Case No. 193 of 2011, whereby cognizance has been taken against the petitioners for the offences under Sections 72A, 72C(1)(a) and 72C (1)(c) of the Mines Act. The petitioners have also prayed for quashing the entire criminal proceeding against the petitioners in this case.

3. The facts of the case lie in a narrow compass. Petitioner Arvind Kumar Sinha, was working as Manager, petitioner Narayan Prasad was working as Safety Officer, petitioner Bikash Kumar Sinha was working as Assistant Manager, petitioner Manoj Kumar Sah was working as Overman and petitioner Sanjay Kumar Mahto was working as Mining Sardar, in Patherdih Colliery of M/s BCCL, wherein in the night shift of 23.7.2011 at about 2.00 A.M., a mass of shaly sandstone roof measuring 3.8m x 1.70m x 0.20m thick, parted from the roof and fell down from a height of 3.9m, on a group of four loaders loading the blasted coal, inflicting serious injuries to them, in which, one of them succumbed to his injuries after a little while, the second loader died in the way to hospital, the third loader suffered injuries, while fourth loader escaped unhurt.

4. Enquiry was held by the O.P. No.2, being the Dy. Director of Mines Safety, wherein it was found that there were violations of various regulations of the Coal Mines Regulation, 1957 and other statutory provisions and accordingly, the complaint was lodged against these petitioners being the Manager, Safety Officer and other officials of the Mines. On the basis of the written complaint and on the basis of the materials available on record, the learned Magistrate took cognizance for the offences under the Mines Act, as aforesaid, against the petitioners, which has been impugned in this petition.

5. Learned counsel for the petitioners has taken the sole point for challenging the impugned order, as also for quashing the entire criminal proceeding against the petitioners, submitting that Section 79 of the Mines Act mandates that no cognizance for any offence under the Mines Act shall be taken unless the complaint is made within three months of the date on which the sanction for prosecution is received by the Chief Inspector, in a case in which the accused is or was a public servant and the previous sanction of the Central Government or the State Government or of any other authority is necessary, for taking cognizance of the offence under any law for the time in force. It is submitted that admittedly the petitioners are in the service and on the pay roll of a Government Company as defined in the Companies Act, and accordingly, the petitioners are public servants within the meaning of sub clause (b) of twelfth description within Section 21 of the Indian Penal Code. It is accordingly, submitted that the petitioners being the public servants, no cognizance could be taken against the petitioners in absence of the previous sanction from the appropriate Government. In this connection, learned counsel has placed reliance upon a decision of the Ranchi Bench of the then Patna High Court in the case of Triloki Nath Raina Vs. The State of Bihar through Labour Enforcement Officer (Central) Ranchi, as reported in 1990 BLT (Rep. 222), wherein it has been laid down as follows:-

“13. As found above, the petitioner is a public servant, who was appointed by the President of India. The petitioner is being prosecuted not in the individual capacity but he is being prosecuted in official capacity for not doing his official duty in relation to the Act or Rule. The undertaking or company owned by the Central Government or such Corporation is deemed to be the State within the meaning of Article 12 of the Constitution of India and, therefore, the activities of the Corporation must be in connection with the affairs of that S