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2015 Supreme(Jhk) 890
IN THE HIGH COURT OF JHARKHAND AT RANCHI
R.R. PRASAD, J.
K.D. Diwan & Anr. - Petitioners
Versus
The State of Jharkhand & Anr. - Respondents
W.P.(Cr.) No.104 of 2009
Decided on : 02.07.2015
Advocate Appeared:
For the Petitioners: Mr. Pandey Neeraj Rai
For the Respondents: G.P.III
For the U.O.I.: Mr. Rajeev Sinha, A.S.G. O. I.
Directors are not automatically responsible for the duties and obligations under the Indian Electricity Rules, and prosecution requires specific allegations of responsibility for the company's affairs.
Headnote:
Electricity Act - Prosecution of Director under Indian Electricity Act, 2003 - Rule 3(1), 45(1), 131 of Indian Electricity Rules, 1956 - Section 146 of Indian Electricity Act, 2003
Fact of the Case:
The petitioners sought to quash the criminal proceeding against them for contraventions of the Indian Electricity Rule, 1956 and Section 146 of the Electricity Act, 2003, following an accident at a mine.
Finding of the Court:
The court held that the prosecution of the petitioner, a Director, was unwarranted as the duties and obligations under the rules were not applicable to Directors. The court also found that the company had not been made an accused, rendering the prosecution of the petitioner illegal.
Issues: Prosecution of Director under Indian Electricity Act, 2003
Ratio Decidendi: Directors are not responsible for carrying out the duties and obligations under the Indian Electricity Rules, 1956. Prosecution of a Director requires allegations of responsibility for the company's day-to-day affairs, and the company must be made an accused.
Final Decision: The criminal proceeding against petitioner No.1 was quashed, and petitioner No.2's application was dismissed.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
How to determine whether a Director can be prosecuted under the Indian Electricity Rules, 1956 and the Electricity Act, 2003 without the company being named as an accused?
What is the meaning of "Owner" under Mines Act and whether a Director can be deemed "Owner" for the purposes of prosecuting under the Indian Electricity Rules, 1956?
What are the circumstances under which vicarious liability can attach to a Director under Section 149 of the Electricity Act, 2003 when the offence is committed by a company?
Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondents.
2. This application has been filed on behalf of the petitioners No.1 and 2 for quashing of the entire criminal proceeding of C-2 Case No.12 of 2009 including the order dated 20.01.2009 whereby and whereunder cognizance of the offence punishable under Section 146 of the Electricity Act, 2003 has been taken against the petitioners and others.
3. At the outset, it be stated that this application has been filed on behalf of the two petitioners but now it would confine to petitioner No.1, as according to learned counsel appearing for the petitioner, he would not be pressing this application so far as petitioner No.2 is concerned, rather will be seeking liberty to file an appropriate application for redressal of his grievances at an appropriate stage.
4. Before adverting to the submissions advanced on behalf of the parties, the case of the prosecution, needs to be taken notice of :-
A complaint bearing C-2 Case No.12 of 2009 was lodged against the petitioner and other accused persons wherein it has been alleged that on receiving information that one person has died on account of being electrocuted at Surda Coper Mines on 02.04.2008, the Deputy Director of Mines Safety (Electrical)-cum-Inspector of Mines (Electrical) as well as Electrical Inspector, made inspection of Mosabani Concentrator Plant of Surda Copper Mine on 07, 08 & 09 April, 2008 to enquire into the cause and circumstances, which led to the accident whereby three persons got electrocuted while they were working on 3.3. KV switchgear panel without taking proper shutdown, discharging the panel and making the panel earthed. During enquiry, certain contraventions of the Indian Electricity Rule, 1956 were found. So far as this petitioner is concerned, following contraventions of the aforesaid rule was found :-
1. In contravention of the provision of Rule 3(2) of the Indian Electricity Rule, 1956 and Rule 45(1) & (2) of the Indian Electricity Rule, 1956, accused Nos.1, 2 and 3 failed to appoint necessary competent persons possessing an appropriate certificate of competency.
2. In contravention of the provision of Rule 131 of the Indian Electricity Rule, 1956, read with Rule 45(1) & (2) of the Indian Electricity Rule, 1956, accused No.1, 2 and 3 failed to appoint Electrical Supervisor and Electricians holding an appropriate certificate of competency.
5. On such accusation, when the cognizance of the offence punishable under Section 146 of the Indian Electricity Act, 2003 was taken against the accused persons including the petitioner vide order dated 20.01.2009, that order was challenged by way of this application.
6. Mr. Pandey Neeraj Rai, learned counsel appearing for the petitioner submits that the petitioner, being the Director, cannot be proceeded with the prosecution even if there had been any contravention of the provision of the Rule as the petitioner being the Director was not responsible to carry out the mandate as stipulated in the aforesaid rules.
7. Learned counsel, by referring to Rule 3 of the Indian Electricity Rules, 1956, speaking about the 'authorization', submits that the authorization, in terms of the provision under Rule 3, can be made by a Supplier, or a consumer, or the owner, agent or manager of a mine but the petitioner being one of the Directors cannot be said to be either a supplier or a consumer, owner, agent or manager of the mine.
8. In this regard, learned counsel by referring to Section 2(l) of the Mines Act, 1952 defining “Owner” submits that immediate proprietor or lessee or “occupier” of the mines will also be falling within the definition of 'owner'. It was pointed out that the “occupier” has not been defined under the Mines Act, 1952, but the Hon'ble Supreme Court in a case of Chief Inspector of Mines and another vs. Karam Chand Thakur [1961(2) Cr.L.J.1] where the question incidentally fell for consideration as to who could be termed as “occup
