Page 1

1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 246 OF 2017

BINOY KUMAR MISHRA .....APPELLANT(S)

VERSUS

STATE OF JHARKHAND AND ANOTHER .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO. 247 OF 2017

CRIMINAL APPEAL NO. 248 OF 2017

A N D

CRIMINAL APPEAL NO. 249 OF 2017

J U D G M E N T

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

Page 2

2

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

Page 3

3

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.

Page 4

4

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

Prasad  Mukherjee,  Under  Manager,  Kusunda  Colliery  could  not  take

steps for  making inspection of  place of  occurrence nor  gave specific

direction  pertaining  to  support  the  place  of  occurrence  although

condition of bad roof was reported to him by Sri Chand Babu-Overman

of Shift.

(iii)  The accused-Overman Sri Chand Babu engaged the loaders at the

place of occurrence, which was not supported as per the terms of the

SSR even when the condition of bad roof was reported to him by the

Page 5

5

Overman of the previous shift.

(iv)  One of the accused Mining Sirdar Ambika Singh of the said Colliery

deployed the loaders without supporting the roof in terms of SSR.

5. It may also be recorded that the prosecution produced ample evidence

in support of its case that at the time of working in the said mine, some

of the workers found that the condition of the roof was bad and Mining

Sirdar Ambika Singh was even informed about the same expressing the

apprehension that roof may fall on them.  Ambika Singh directed to call

the dresser, who came and reported that the condition of the roof was

precarious.   However, Mining Sirdar  dismissed the apprehensions by

sharply reacting that he had experience of twenty years in mining and

nothing was going to happen.  He directed the loaders to continue the

excavation.  The workers even protested and requested to give support

to  the place of  occurrence but  the Mining Sirdar  refused to  listen to

them.   Immediately  thereafter,  the  occurrence  took  place.   These

findings arrived at by the trial court are upheld by the first appellate court

and the High Court has also affirmed the same.  As a consequence,

violation of  SSR has been established.   The case of  the appellants,

however, is that keeping in view their position, no such criminal liability

can be fastened upon them as they were not responsible for the mishap

either factually or in law.

Page 6

6

6. Insofar as appellant Binoy Kumar Mishra (appellant in Criminal Appeal

No. 246 of 2017) is concerned, he was holding the post of Manager at

the relevant time.  Mr. Saurabh Kirpal, learned advocate arguing for him,

submitted  that  the  courts  below  ignored  that  there  were  many

exculpatory facts of  the case and legal  error  is committed in wishing

them away and basing the judgment only on the ground that burden of

proof,  as  per  the  provisions  of  the  Act,  was  upon  the  appellants.

According to him, following important and material facts are sufficient to

prove the innocence of the appellant Binoy Kumar Mishra:

(i) The SSR under  Regulation 108 were framed in the year  1993,

which was duly approved by the Directorate General of Mines Safety.

This was prior to the appointment of the appellant as a Manager.   

(ii) The departmental inquiry, while holding the Mining Sirdar and the

Overman guilty, exonerated the appellant.   The report also concluded

that the colliery had adequate arrangements.

(iii) The Director of Mines Safety (PW-1) in its deposition has attributed

specific role only to Ambika Singh.  He had admitted that as a part of his

statutory duty, he had inspected the said mine on 27.12.1995.

(v) The prosecution has failed to show the specific  provision under

Regulation 108 which the appellant had violated.

(vi) In the statement under Section 313 Cr.P.C., the appellant made a

categorical statement to the effect that full support of the roof was given

Page 7

7

and that he was innocent.

(vii) There  was  no  specific  allegation  or  role  attributable  to  the

appellant, much less evidence of neglect or omission on the part of the

appellant.

(viii) The appellant  as a ‘Manager’  of  the Colliery, had taken all  due

diligence  within  his  authority  and  control,  without  any  culpable

negligence or omission for maintaining the safety in the mines.  

7. Mr. Kirpal  conceded that,  no doubt,  as per  the provisions of  Section

18(5)  of  the  Act,  the  burden  of  proof  is  upon  the  appellant.

Notwithstanding,  his  submission was that  even when the principle  of

reverse burden of proof is applied in a particular case, the obligation on

the part  of  the prosecution to prove the basic foundational  facts very

much remains, which has not been discharged by the prosecution in the

present case insofar as culpability of the ‘Manager'  is concerned.  In

support of his aforesaid proposition, he referred to the judgment of this

Court  in  Noor Aga  v.  State  of  Punjab & Anr.1 wherein  the primary

obligation of the prosecution is stated in the following words:

“58. Sections  35  and  54  of  the  Act,  no  doubt,  raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf  on  the  accused;  but  a  bare  perusal  of  the  said provision  would  clearly  show  that  presumption  would operate  in  the  trial  of  the  accused  only  in  the  event  the circumstances contained therein are fully satisfied. An initial

1  (2008) 16 SCC 417

Page 8

8

burden exists upon the prosecution and only when it stands satisfied,  would  the  legal  burden  shift.  Even  then,  the standard  of  proof  required  for  the  accused  to  prove  his innocence is not as high as that of the prosecution. Whereas the  standard  of  proof  required  to  prove  the  guilt  of  the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution  fails  to  prove  the  foundational  facts  so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.”

8. He also cited the following judgments on the same proposition:

(i) Bhola Singh v. State of Punjab2:

“11.  Applying the facts of the present case to the cited one, it  is  apparent  that  the  initial  burden  to  prove  that  the appellant had the knowledge that the vehicle he owned was being  used  for  transporting  narcotics  still  lay  on  the prosecution, as would be clear from the word “knowingly”, and  it  was  only  after  the  evidence  proved  beyond reasonable  doubt  that  he  had  the  knowledge  would  the presumption  under  Section  35  arise.  Section  35  also presupposes that the culpable mental state of an accused has to be proved as a fact beyond reasonable doubt and not merely  when  its  existence  is  established  by  a preponderance of probabilities. We are of the opinion that in the absence of any evidence with regard to the mental state of the appellant no presumption under Section 35 can be drawn. The only evidence which the prosecution seeks to rely  on is  the appellant's  conduct  in  giving his  residential address  in  Rajasthan  although  he  was  a  resident  of Fatehabad in Haryana while registering the offending truck cannot  by  any  stretch  of  imagination  fasten  him with  the knowledge of its misuse by the driver and others.”

(ii) Babu v. State of Kerala3:

“27.  Every accused is presumed to be innocent unless the guilt  is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this

2  (2011) 11 SCC 653 3  (2010) 9 SCC 189

Page 9

9

purpose,  the  nature  of  the  offence,  its  seriousness  and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken  conviction.  Statutes  like  the  Negotiable Instruments  Act,  1881;  the  Prevention  of  Corruption  Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act,  1987,  provide  for  presumption  of  guilt  if  the circumstances provided in  those statutes  are found to  be fulfilled and shift  the burden of  proof of  innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution.  There may be difficulty in proving a negative fact.”

(iii) Krishna Janardhan Bhat v. Dattatraya G. Hegde4:

“44.  The  presumption  of  innocence  is  a  human  right. (See Narendra  Singh v. State  of  M.P.  [(2004)  10  SCC 699:2004  SCC  (Cri)  1893], Ranjitsing  Brahmajeetsing Sharma v. State  of  Maharashtra [(2005)  5  SCC  294:2005 SCC (Cri) 1057] and Rajesh Ranjan Yadav v. CBI [(2007) 1 SCC  70:  (2007)  1  SCC  (Cri)  254].   Article  6(2)  of  the European Convention on Human Rights provides: ‘Everyone charged with a criminal offence shall be presumed innocent until  proved guilty  according to law.’ Although India is  not bound  by  the  aforementioned  Convention  and  as  such  it may not be necessary like the countries forming European countries  to  bring  common  law  into  land  with  the Convention,  a  balancing  of  the  accused's  rights  and  the interest  of  the  society  is  required  to  be  taken  into consideration.  In  India,  however,  subject  to  the  statutory interdicts,  the  said  principle  forms  the  basis  of  criminal jurisprudence. For the aforementioned purpose the nature of the  offence,  seriousness  as  also  gravity  thereof  may  be taken into consideration.  The courts  must  be on guard to see  that  merely  on  the  application  of  presumption  as contemplated  under  Section  139  of  the  Negotiable Instruments  Act,  the  same  may  not  lead  to  injustice  or mistaken  conviction.  It  is  for  the  aforementioned  reasons that  we  have  taken  into  consideration  the  decisions operating  in  the  field  where  the  difficulty  of  proving  a negative has been emphasised. It is not suggested that a negative can never be proved but  there are cases where such difficulties are faced by the accused e.g. honest and reasonable mistake of fact…”

4  (2008) 4 SCC 54

Page 10

10

9. It was also the submission of Mr. Kirpal that departmental inquiry was

held into this incident wherein culpability of only two persons, namely,

Ambika Singh and Sahid Akhtar Khan, was found and insofar as the

appellant Binoy Kumar Mishra is concerned, he was exonerated.  Riding

on  these  findings,  he  submitted  that  Binoy  Kumar  Mishra  had  duly

discharged the burden as envisaged.  Without prejudice to the above

submissions,  Mr.  Saurabh  Kirpal  pointed  out  that  the  unfortunate

accident happened in the year 1996 and that the appellant had been

going  through  the  ordeal  for  the  past  more  than  twenty  years.

Furthermore,  the  provisions  under  which  the  appellant  has  been

convicted attracts a substantive sentence or fine.   The appellant holds a

government post and custody for a period of over 24 hours would lead to

his  suspension  as  per  the  rules.   This  would  be  completely

disproportionate  to  the  role  allegedly  played  by  the  appellant.   He,

therefore, pleaded that a lenient view be taken.     

10. Mr. Rakesh Dwivedi, learned senior counsel appearing for the appellant

Nageshwar Sharma (appellant in Criminal Appeal No. 247 of 2017), also

made his submission on the same lines.  In addition, he referred to the

provisions of Section 2(c) of the Act which defines ‘agent’, in relation to a

mine.   As  per  this  definition,  every  person  who  takes  part  in  the

Page 11

11

management, control, supervision or direction of the mine or of any part

thereof  is  treated as ‘agent’,  whether  appointed as such or  not.   He

submitted  that  Nageshwar  Sharma  was  not  taking  part  in  the

management,  control,  supervision  or  direction  of  the  mine  and,

therefore, he was not liable for the aforesaid accident.  Mr. Dwivedi also

submitted that a mere perusal of the complaint would show that there is

no  specific  allegation  against  his  client  and  only  designation  of  the

appellant Nageshwar Sharma was mentioned therein with bald averment

that  he  was  exercising  supervision,  management  and  control  of  the

mine.   According  to  him,  that  is  not  sufficient  to  rope  in  the  said

appellant, having regard to the legal position explained by this Court in

G.N. Verma v. State of Jharkhand & Anr.5, in the following manner:

“20. Insofar as the criminal complaint is concerned, it does not  contain  any  allegation  against  G.N.  Verma.  The  only statement concerning him is that he was the Chief General Manager/deemed  agent  of  the  mine  and  was  exercising supervision, management and control of the mine and in that capacity was bound to see that all mining operations were conducted  in  accordance  with  the  Act,  the  Rules, Regulations, Orders made thereunder. In the face of such a general  statement,  which does not  contain any allegation, specific  or  otherwise,  it  is  difficult  to  hold  that  the  Chief Judicial Magistrate rightly took cognizance of the complaint and issued summons to G.N. Verma. The law laid down by this  Court  in Harmeet  Singh  Paintal [National  Small Industries  Corpn.  Ltd. v. Harmeet  Singh  Paintal,  (2010)  3 SCC 330 :  (2010) 1 SCC (Civ) 677 :  (2010) 2 SCC (Cri) 1113]  (though  in  another  context)  would  be  squarely applicable. Under the circumstances, we are of the opinion that on the facts of this case and given the absence of any allegation  in  the  complaint  filed  against  him  no  case  for

5  (2014) 4 SCC 282

Page 12

12

proceeding against G.N. Verma has been made out.

xxx xxx xxx

24.   The  law  is  well  settled  by  a  series  of  decisions beginning  with  the  Constitution  Bench  decision  in W.H. King v. Republic  of  India [AIR 1952 SC 156 :  1952 Cri  LJ 836 : 1952 SCR 418] that when a statute creates an offence and imposes a penalty of fine and imprisonment, the words of  the  section  must  be  strictly  construed in  favour  of  the subject.  This  view  has  been  consistently  adopted  by  this Court over the last, more than sixty years.”

11. He also submitted that no evidence was produced to show any culpable

negligence or  omission  on  the  part  of  Nageshwar  Sharma.   Further,

none of the courts below discussed his role specifically or the evidence

against him and convicted the appellant on unfounded presumptions.  It

was also submitted that while recording the statement of the appellant

under Section 313 of the Cr.P.C., only four questions were put to him

and there was inadequate opportunity to respond to the evidence which,

in any case, does not establish criminality and, therefore, it has resulted

in failure of justice.

12. Mr. Parijat Kishore, advocate who appeared for the appellant Mahendra

Prasad Gupta (appellant in Criminal Appeal No. 248 of 2017), made his

submission on the same lines.

13. Ms.  Amrita  Sharma,  advocate  assisted  by  Ms.  Hetu  Arora  Sethi,

appeared for the appellant Madhusudan Banerjee (appellant in Criminal

Appeal  No.  249 of  2017).   It  was submitted that  the accident  report

Page 13

13

prepared by the Director after inquiry did not attribute any lapse on the

part of  her client as it  found only Mining Sirdar Ambika Singh, Sahid

Akhtar Khan and Shankar Prasad Mukherjee liable for the accident.  She

further submitted that there was only blanket and bald allegation against

this  appellant  with  no  specifications.   She  further  argued  that  Mr.

Banerjee had retired from service fifteen years back and presently he is

seventy five years of age and is shrouded with lot of ailments including

serious cardiac issues.  He recently, in October 2016, had an accident

and fractured his hip bone.  Despite a surgery, he has been confined to

the bed and cannot even go to the toilet  without  help.   Therefore,  a

fervent  plea was made to take a lenient  view insofar  as sentence is

concerned, even if the contentions on merits are not accepted.

14. Mr. Sinha, learned senior counsel, appearing for the respondent State,

submitted  that  all  the  four  appellants  were  squarely  covered  by  the

definition of ‘agent’ as contained in Section 2(c) of the Act as by the very

nature of their designation and duties, it was clear that they were taking

part in the management, control and supervision of the mine as well as

direction  of  the  mine  in  question.   He  referred  to  the  provisions  of

Section 17 of the Act which deals with ‘Managers’ and,  inter alia, lays

down that every mine shall be under a sole manager who shall have

prescribed  qualifications  and  the  owner  or  agent  of  every  mine  is

supposed to appoint  a person having such qualifications to have the

Page 14

14

Manager.  He,  thus,  argued that  Manager  is  the only  person who is

responsible  for  the  overall  management,  control,  supervision  and

direction  of  the  mine.   Mr.  Sinha  also  relied  upon  the  provisions  of

sub-sections (4) and (5) of Section 18 of the Act.  Section 18 of the Act

pertains to duties and responsibilities of owners, agents and managers.

Sub-section (4) thereof provides that the owner, agent and manager of

every mine would be responsible to see that all the operations carried on

in  connection  with  the  mine  are  conducted  in  accordance  with  the

provisions of the Act, the regulations, rules, bye-laws and orders made

thereunder.   Sub-section  (5)  makes  owner,  agent  or  manager

responsible for contravention of any of the provisions of the Act or the

regulations,  rules,  bye-laws  or  orders  made  thereunder.   He,  thus,

argued that  a conjoint  reading of  the aforesaid provisions makes the

appellants liable in the absence of any evidence led by them to show

that  the presumptions contained in  the aforesaid provisions were not

applicable.   

15. Mr.  Rana  Mukherjee,  learned  senior  counsel  who  appeared  for

respondent No.2, has supported Mr. Sinha and referred to the evidence

which, according to him, proves the culpability of the appellants as well.

16. In order to appreciate the respective contentions of the learned counsel

for the parties appearing on either side, it would be apposite to take note

Page 15

15

of  the  relevant  provisions  of  the  Act  as  well  as  Regulations  framed

thereunder which are pressed into service by the counsel for the parties.

These provisions are as under:

“ 2(c) "agent", when used in relation to a mine, means every person, whether appointed as such or not, who, acting or purporting to act on behalf of the owner, takes part in the management, control, supervision or direction of the mine or of any part thereof;  

xxx xxx xxx

2(l)  “owner”, when used in relation to a mine, means any person who is the immediate proprietor or lessee or occupier of the mine or of any part thereof and in the case of a mine the business whereof is being carried on by a liquidator or receiver,  such  liquidator  or  receiver  11[***]  but  does  not include a person who merely receives a royalty, rent or fine from  the  mine,  or  is  merely  the  proprietor  of  the  mine, subject to any lease, grant or licence for the working thereof, or is merely the owner of the soil and not interested in the minerals of the mine; but 12[any contractor or sub-lessee] for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability;

xxx xxx xxx

2(o)   “regulations”,  “rules”  and  “bye-laws”  means respectively regulations, rules and bye-laws made under this Act;

xxx xxx xxx

17. Managers.— (1) Save as may be otherwise prescribed, every mine shall be under a sole manager who shall have the prescribed qualifications and the owner or agent of every mine shall appoint a person having such qualifications to be the manager:  

Provided that the owner or agent may appoint himself as manager if he possesses the prescribed qualifications.

(2) Subject to any instructions given to him by or on behalf of  the owner or  agent  of  the mine,  the manager shall  be

Page 16

16

responsible for the overall management, control, supervision and  direction  of  the  mine  and  all  such  instructions  when given by the owner or agent shall  be confirmed in writing forthwith.

(3)  Except in case of an emergency, the owner or agent of a mine or anyone on his behalf shall not give, otherwise than through the manager, instructions affecting the fulfilment of his statutory duties, to a person, employed in a mine, who is responsible to the manager.]

xxx xxx xxx

18.  Duties and responsibilities of owners, agents and managers.— (1)  The owner and agent of every mine shall each  be  responsible  for  making  financial  and  other provisions  and  for  taking  such  other  steps  as  may  be necessary for compliance with the provisions of this Act and the  regulations,  rules,  bye-laws  and  orders  made thereunder.

(2)  The responsibility in respect of matters provided for in the rules made under clauses (d), (e) and (p) of section 58 shall be exclusively carried out by the owner and agent of the  mine  and  by  such  person  (other  than  the  manager) whom  the  owner  or  agent  may  appoint  for  securing compliance with the aforesaid provisions.

(3)   If  the  carrying  out  of  any  instructions  given  under sub-section (2) or given otherwise than through the manager under  sub-section  (3)  of  section  17,  results  in  the contravention  of  the  provisions  of  this  Act  or  of  the regulations,  rules,  bye-laws  or  orders  made  thereunder, every person giving such instructions shall also be liable for the contravention of the provisions concerned.

(4)  Subject to the provisions of sub-sections (1), (2) and (3), the owner, agent and manager of every mine shall each be responsible  to  see  that  all  operations  carried  on  in connection with the mine are conducted in accordance with the  provisions  of  this  Act  and  of  the  regulations,  rules, bye-laws and orders made thereunder.

(5)   In  the  event  of  any  contravention  by  any  person whosoever  of  any  of  the  provisions  of  this  Act  or  of  the regulations,  rules,  bye-laws  or  orders  made  thereunder except those which specifically require any person to do any act or thing or prohibit any person from doing an act or thing,

Page 17

17

besides the person who contravenes, each of the following persons  shall  also  be  deemed  to  be  guilty  of  such contravention  unless  he  proves  that  he  had  used  due diligence to secure compliance with the provisions and had taken reasonable means to prevent such contravention:—

(i) the official or officials appointed to perform duties of supervision in respect of the provisions contravened;

(ii) the manager of the mine;

(iii) the owner and agent of the mine;

(iv)   the  person  appointed,  if  any, to  carry  out  the responsibility under sub-section (2):  

Provided that any of the persons aforesaid may not be proceeded against if it appears on inquiry and investigation, that he is not prima facie liable.

(6)  It  shall  not  be a defence in any proceedings brought against the owner or agent of a mine under this section that the  manager  and  other  officials  have  been  appointed  in accordance with the provisions of this Act or that a person to carry  the  responsibility  under  sub-section  (2)  has  been appointed.].”

17. We further notice that Chapter V comprising of Sections 19 to 27 of the

Act contains provisions as to health and safety.  Section 23 thereof casts

an obligation on the owner, agent or manager of the mine to give notice

of  accidents of  the nature mentioned therein.   Section 24 of  the Act

empowers  the  Government  to  appoint  court  of  inquiry  in  case  of

accidents.   Section  57  of  the  Act  confers  power  on  the  Central

Government  to  make  Regulations  for  all  or  any  of  the  purposes

stipulated therein by notification in the official gazette.  Under Section 58

of the Act, the Central Government is empowered to make Rules for all

Page 18

18

or any of the purposes mentioned in that Section.  Under section 60 of

the Act, the Central Government is empowered to make Regulations by

dispensing with the publication under certain circumstances.  Section 61

of the Act  authorises owner, agent or  manager of  mine to draft  such

bye-laws, not being inconsistent with the Act or any Regulations or Rules

for the time being in force, governing the use of any particular machinery

or the adoption of any particular method in the mine.  However, when

called upon to do so by the Chief Inspector or Inspector, framing of such

draft  bye-laws becomes obligatory.  Chapter IX provides for penalties

and  procedure  and  it  covers  Sections  63  to  81  of  the  Act.   As  the

appellants herein along with other accused persons were charged for

offences under Sections 72A, 72C(1)(a) and 72C(1)(b), these provisions

are reproduced hereunder:

“72A.  Special  provision  for  contravention  of  certain regulations.—  Whoever contravenes any provision of any regulation  or  of  any  bye-law  or  of  any  order  made thereunder, relating to matters specified in clauses (d), (i) , (m),  (n),  (o),  (p),  (r),  (s),  and  (u)  of  section  57  shall  be punishable with imprisonment for a term which may extend to  six  months,  or  with  fine  which  may  extend  to  two thousand rupees, or with both.]

72C.  Special  provision  for  contravention  of  law  with dangerous  results.—(1) Whoever  contravenes  any provision of this Act or of any regulation, rule or bye-law or of any order made thereunder [other than an order made under sub-section  (1A)  or  sub-section  (2)  or  sub-section  (3)  of section 22] 2[or under sub-section (2) of section 22A], shall be punishable—

(a) if  such  contravention  results  in  loss  of  life,  with

Page 19

19

imprisonment which may extend to two years, or with fine which may extend to five thousand rupees, or with both; or

(b) if such contravention results in serious bodily injury, with imprisonment which may extend to one year, or with fine which may extend to three thousand rupees, or with both; or

(c) if such contravention otherwise causes injury or danger to persons employed in the mine or other persons in or about the mine, with imprisonment which may extend to three  months,  or  with  fine  which  may  extend  to  one thousand rupees, or with both:  

[Provided that in the absence of  special and adequate reasons  to  the  contrary  to  be  recorded  in  writing  in  the judgment  of  the  court,  such  fine,  in  the  case  of  a contravention referred to in clause (a), shall not be less than three thousand rupees.]

(2)   Where  a  person  having  been  convicted  under  this section  is  again  convicted  thereunder,  he  shall  be punishable  with  double  the  punishment  provided  by sub-section (1).

(3)  Any court imposing or confirming in appeal, revision or otherwise a sentence of fine passed under this section may, when passing judgment, order the whole or any part of the fine recovered to be paid as compensation to the person injured  or,  in  the  case  of  his  death,  to  his  legal representative:  

Provided that if  the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if any appeal has been presented, before the decision of the appeal.]”

18. As already noted above, the 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.  When the accident

was reported and the inquiry conducted, respondent No.2 submitted the

Page 20

20

report as per which it was found during inspection that entire junction

that  fell  down was practically without support.   A steel  cog had been

provided at east level.   This report also analysed the evidence which

was collected during inquiry and made observations thereupon in para 9

with clear findings that the accident had resulted due to the negligence

and  bad  maintenance.   Some of  the  observations  in  this  behalf  are

reproduced below:

“9.0   ANALYSIS  OF  EVIDENCE  AND  OBSERVATIONS MADE

9.1  The Manager had framed SSR based on experience and other guidelines but not on scientific studies including RMR needed to evaluate the support requirement.

9.2  The roof that fell was kept supported barely by nine roof bolts  in  the  face  and  no  support  was  provided  at  the junction.  The area of fall was about 28 sq. m and according to the SSR enforced this area should have been supported by about 22 bolts  against  which only nine were provided. Obviously the support provided was inadequate.

9.3  The SSR required roof bolts at junction to be reinforced by W straps which are basically steel channels.  No such W strap was used in  the  junction  where  the  fall  took place. Infact W strap was not used in any junction of the district.

xxx xxx xxx

9.6  That the roof at the place of accident could be bad was identified by the Overman of second shift Shri Chand Babu. He accordingly informed his relieving Overman Shri Saheed Akhtar  Khan  and  also  the  Under  Manager  Shri  S.P. Mukherjee  while  handing  over  charge  at  the  end  of  the second  shift.   He  also  recorded  his  observations  in  his statutory record book maintained under regulation 43(9) of CMR’57.   Similarly  the  Sirdar  Shri  Ambika  Singh  was informed by his relieving Sirdar of second shift Shri Rajendra Kumar that the roof at the place of accident was bad and required  dressing.   Thus  that  the  roof  at  the  place  of

Page 21

21

accident could be bad was known to the Sirdar, Overman and Under Manager of third shift.  After shotfiring in those faces the dressers Shri Sukhalu Bhor as well as the loaders engaged there told the Sirdar Shri  Ambika Singh that the roof was bad and needed support.  Yet the Sirdar deployed the loaders without providing any support which finally led to the accident.

xxx xxx xxx

9.15 Thus it can be concluded that the fall had taken place  due to association with geological disturbances and not  providing support as per the requirement of SSR.”

19. In  this  report,  responsibilities  of  various persons is  also fixed,  in  the

following manner:  

“11.0  RESPONSIBILITY

11.1  The Sirdar Shri Ambika Singh deployed the loaders in the faces without supporting the roof with roof bolting and a steel cog in spite of learning from the previous shift that the roof could be bad and even after the affected loaders had expressed apprehension about the stability of the roof and requested him to support the same.  He therefore knowingly contravened  the  provision  of  Regulation  of  44(1)(b)  and 44(3)(c) read with the SSR framed under Regulation 108 of the  Coal  Mines  Regulation,  1957  and  is  thus  primarily responsible for the accident.

xxx xxx xxx

11.4   The  manager  Shri  Vinay  Kumar  Mishra  could  not ensure the part of the mine where the accident took place was not worked without support in contravention of the SSR enforced  and  in  contravention  of  Regulation  of  108(5)  of CMR’57.  He is also responsible for the accident.

11.5  Shri Madhu Sudan Banerjee who was the Agent of that particular mine only took part in the management, control, supervision and direction of the mine in a regular manner could  not  ensure  that  the  part  of  the  mine  where  the accident  took  place  was  not  worked  without  support  in contravention  of  SSR  enforced  under  Regulation  108  of CMR’57 read with Section 18(4) of the Mines Act, 1952.  He

Page 22

22

is also therefore responsible for the accident.

11.6  Shri N Sharma, Additional General Manager and Shri M K Gupta,  General  Manager, Kusunda Area though not appointed  as  such  took  part  in  management,  control, supervision  and  direction  of  the  mine  through  regular interaction and therefore they were also agents.  They had six  mines  under  them  and  they  exercised  management control, supervision of the mine but they failed to ensure that the place where the accident  took place was not  worked without  support  in  contravention  of  SSR  enforced  under Regulation 108 of  CMR’57 read with Section 18(4)  of  the Mines  Act,  1952  and  are  therefore  responsible  for  the accident.

11.7   The  Systematic  Support  Rules  enforced  under regulation  108(1)(bb)  required  freshly  exposed  roof  to  be supported by 3 bolts at distance of 1.2 m. all the junctions within 10 m of the face was required to be supported by W strap on bolts.  It also required that before loading cola, roof bolting shall be done so that freshly roof is supported.  In this case none of the junctions including the one where the accident took place was supported by W straps.  The roof bolts were also installed haphazardly and not in a systematic manner.   The distance between the  bolts  was  also  more than 1.2 m at  many places.   Therefore the Manager and Agents including the Addl.  General  Manager  and General Manager were aware that the Systematic Support Rules was not being fully enforced, the violation of which lead to the accident.   Therefore  they  are  also  responsible  for  the accident.”

20. In other paras, Ambika Singh, Sahid Akhtar Khan and Shankar Prasad

Mukherjee are  also fastened with  the responsibility.  They have also

been  convicted  and  as  they  have  not  laid  further  challenge  to  their

conviction after the dismissal of their appeals.  Therefore, we have not

reproduced the findings qua them.  

21. We may mention that the evidence which was led by the prosecution in

support of its case qua all the accused persons is on the same lines on

Page 23

23

which liability is fastened on these persons in the aforesaid report.  With

these  preliminary  remarks,  we  advert  to  the  case  of  each  of  the

appellants.

22. Insofar as appellant Binoy Kumar Mishra is concerned, as pointed out

above, it was argued that report dated 09.01.1996 of the aforesaid fatal

accident was submitted wherein only Mining Sirdar Ambika Singh and

Overman Sahid Akhtar Khan were held responsible.  From this, it was

sought to project that Binoy Kumar Mishra was found innocent.  That,

however,  is  only  a  report  of  the  accident  which  is  required  to  be

submitted under Section 23 of the Act.  When the notice of accident is

received, it is thereafter that the Government appoints a commission of

inquiry  as  per  the  provisions  of  Section  24  of  the  Act.   Such  a

commission of inquiry was appointed, which submitted its report dated

28.06.1996,  relevant  portions  whereof  have  already  been  extracted

above.  As per this report, failure on the part of Mr. Mishra is attributed in

not  able to enforce SSR and also contravening Regulation 108(5)  of

CMR, 1957 and on that basis he is held responsible for the accident.  It

was submitted by  the  learned counsel  appearing  for  Mr. Mishra that

these SSR were framed in the year 1993, i.e. prior to the appointment of

Mr.  Mishra  as  a  Manager,  and  were  duly  approved  by  the  Director

General of Mines Safety.  It was further argued that insofar as alleged

violation of Regulation 108 is concerned, no specific provision under the

Page 24

24

said Regulation was shown to have been violated by him.  However, the

charge  against  Mr.  Mishra  is  not  that  he  was  instrumental  in  faulty

drafting of SSR.  The charge, in fact, pertains to the contravention of the

SSR with imputation that a part of mine where the accident took place

was not working without support and that was in violation of the SSR.

However, what was the specific act of contravention is not stated by the

prosecution  witnesses.   There  is  omnibus  allegation  about  the

contravention.   

23. On perusal of the judgment of the trial court, it can be discerned that the

trial court formulated the following points which needed determination:

(i) Whether there was any mining operation going on at the relevant

time  and  place  of  occurrence  and  whether  at  that  time  all  the

above-named accused persons bear a reasonable post for conducting

the same? (ii) Whether during the operation of the said mining work, is there any

occurrence that took place on the said Kusunda Colliery which resulted

in the death of four workers and serious bodily injuries to five other? (iii) Whether the said incident, if any, taken place and caused serious

injury and bodily pain to the workers of the said coal mine happened on

the willful neglect and omission of any provision of law, rules, regulation

and  orders  of  the  Mines  Act  for  which  the  above  named  accused

persons are liable or not?

Page 25

25

24. The findings on the first two points were in the affirmative which have

been established on the basis of evidence and is not required to be gone

into.   This  has  already been stated  by  us.   Insofar  as  third  point  is

concerned,  the  trial  court  found  that  the  accident  in  which  certain

persons lost their lives and certain other persons suffered serious injury

and bodily pain was the result of neglect and omission of the provisions

of  Orders  under  the  Act.   These  findings  were  upheld  by  the  first

appellate  court.   The  High  Court  has  rightly  pointed  out  that  while

exercising revisionary jurisdiction, powers of the High Court were limited

and it  was not  supposed to  go into  the correctness of  the aforesaid

findings unless the same are perverse.  That is not even argued in this

Court as well by the appellants.  The question is, as mentioned above,

whether these appellants are also responsible for the aforesaid mishap?

Section 18 of the Act deals with duties and responsibilities of owners,

agents and managers and sub-section (4) thereof casts upon the owner,

agent and manager responsibility to see that all operations carried on in

connection  with  the  mine  are  conducted  in  accordance  with  the

provisions of the Act and of the regulations, rules, bye-laws and orders

made  thereunder.   Sub-section  (5)  contains  the  provisions  of  strict

liability  by  making  persons  specified  therein  as  ‘deemed  guilty’  for

contravention of the provisions of the Act  or of the regulations, rules,

bye-laws  or  orders  made  thereunder.   It  excludes  only  those  of  the

Page 26

26

aforesaid  provisions  where  responsibility  is  cast  specifically  on  a

particular person to do any act or thing or prohibit any person from doing

an  act  or  thing.   Apart  from  those  who  actually  contravene  such

provisions,  following  persons  are  deemed  to  be  guilty  of  such

contravention unless that person proves that he had used due diligence

to  secure  compliance  with  the  provisions  and  have  to  prevent

contravention:

“(i) the  official  or  officials  appointed  to  perform  duties  of supervision in respect of the provisions contravened;

(ii) the manager of the mine;

(iii) the owner and agent of the mine;

(iv) the  person  appointed,  if  any,  to  carry  out  the responsibility under sub-section (2):

Provided that any of the persons aforesaid may not be proceeded against if it appears on inquiry and investigation, that he is not prima facie liable.”

25. Further, sub-section (5)  of  Regulation 108 which relates to SSR cast

specific responsibility upon the manager in the following manner:

“(5)  The  Manager  and  such  supervising  officials  shall  be responsible  for  securing  effective  compliance  with  the provisions of the Systematic Support Rules, and no mine or part of a mine shall be worked in contravention thereof.”

 26. Specific responsibility is, therefore, laid upon the manager to ensure that

no mine or part of a mine shall be worked in contravention of SSR and

the provisions of SSR are to be effectively complied with.  A cumulative

Page 27

27

reading of the aforesaid provisions, coupled with the provision of strict

liability, would reveal that it was for Mr. Mishra to show as to how he had

discharged his responsibility under the aforesaid provisions and was not

responsible  for  the  occurrence  in  any  manner.   In  the  report  dated

12.02.1996 submitted after conducting the inquiry, as per the mandate of

Section 24 of the Act, it was specifically found that he had contravened

the provisions of  sub-regulation (5)  of  Regulation 108.   This  material

placed by the prosecution was sufficient to discharge the initial burden

that exists upon the prosecution, as per the law laid down in the cases of

Noor Aga, Bhola Singh, Babu and Krishna Janardhan Bhat and had

been duly discharged by the 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.  Therefore, no fault can

be found in the approach of the courts below in convicting him.   

27. Coming to the case of  Madhusudan Banerjee,  he was nominated as

‘agent’ of that very mine where the accident had occurred.  In respect of

Mr. Banerjee, evidence was produced to show that he took part in the

management, control, supervision and direction of the mine in a regular

manner and could not ensure that the mine was worked in accordance

with SSR and falls under Regulation 108 and had contravened Section

18(4) of the Act.  Thus, in his case also, initial burden stood discharged

by the prosecution by placing adequate material against him.  However,

Page 28

28

he failed to discharge his onus as per Section 18(4) of the Act.  It was for

him  to  show that  he  did  not  take  part  in  the  management,  control,

supervision or direction of the mine, which he failed to do.  

28. Mahendra  Prasad  Gupta  and  Nageshwar  Sharma  were  working  as

General  Manager  and  Additional  General  Manager  respectively.   In

respect of these two persons, following responsibilities are fastened as

per the report:

“11.6  Shri N Sharma, Additional General Manager and Shri M K Gupta,  General  Manager, Kusunda Area though not appointed  as  such  took  part  in  management,  control, supervision  and  direction  of  the  mine  through  regular interaction and therefore they were also agents.  They had six  mines  under  them  and  they  exercised  management control, supervision of the mine but they failed to ensure that the place where the accident  took place was not  worked without  support  in  contravention  of  SSR  enforced  under Regulation 108 of  CMR’57 read with Section 18(4)  of  the Mines  Act,  1952  and  are  therefore  responsible  for  the accident.”

29. The aforesaid part of the report accepts that they were neither appointed

as agent nor manager.  They were not the managers of the mines either.

Therefore, they are not covered by sub-section (4) of Section 18 of the

Act.  Though, it is alleged that they took part in management, control,

supervision and direction of the mine, and on that basis, they are treated

as  ‘agents’.   The  prosecution  did  not  produce  any  material  to

substantiate the aforesaid or mention the basis for this conclusion.  In

Page 29

29

order  to  make  them liable,  it  was  necessary  to  show that  they  had

contravened  the  provisions  of  the  Act  or  of  Regulations,  Rules,

Bye-Laws  made  thereunder.   They  are  also  not  covered  under  the

categories of  those persons which are specified in  sub-section (5)  of

Section 18 of the Act.  We are, therefore, of the opinion that it was not

appropriate  to  convict  these  two  appellants  and  their  conviction  is

accordingly set aside.

30. With this  we advert  to  the question of  sentence that  is  given by the

courts below to Binoy Kumar Mishra and Madhusudan Banerjee.  It was

argued by the learned counsel for these two appellants that having re-

gard to certain extenuating factors, even if the conviction is maintained,

they may be fastened with the sentence of fine only.

We are inclined to accept this submission of the counsel for these

two appellants.

31. No doubt, the incident was unfortunate, but it is an old incident which oc-

curred more than 20 years ago.  No doubt, Binoy Kumar Mishra was

holding the post of Manager and in that capacity he was supposed to ex-

ercise due diligence.  At the same time, mine was under the direct con-

trol of other three persons who stand convicted and in respect of whom

the conviction and sentence has become final.  The only role attributed

to him was that he acted in violation of SSR.  The fault on his part was

Page 30

30

more in the nature of negligence in performance of his duties and that he

could have exercised little more diligence.

32. Insofar as Madhusudan Banerjee is concerned, no doubt, he was an

‘agent’  and,  therefore,  was  directly  responsible  to  ensure  that  safety

measures are taken.  However, we find that he retired from service 15

years ago.  He is 75 years of age and is suffering from various ailments,

including heart disease.  He met with an accident in October 2016 and

fractured his hip bone because of which he is confined to bed and can-

not even go to toilet without help.

33. Keeping in view the aforesaid circumstances in respect of these two ap-

pellants, we are of the opinion that the interest of justice would be sub-

served by imposing the sentence of fine only.

34. Conviction under Section 72A of the 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.  The sen-

tences imposed by the trial court are modified in respect of these two ap-

pellants by substituting the sentence of maximum fine prescribed under

Page 31

31

the  aforesaid  provisions,  which  would  be  Rs.2,000/-,  Rs.5,000/-  and

Rs.3,000/- respectively.

35. In the result, appeals filed by Binoy Kumar Mishra (Criminal Appeal No.

246 of 2017) and Madhusudan Banerjee (Criminal Appeal No. 249 of

2017) are partly allowed to the extent of sentence only, as mentioned

above.  The appeals of Mahendra Prasad Gupta (Criminal Appeal No.

248 of 2017) and Nageshwar Sharma (Criminal Appeal No. 247 of 2017)

are allowed thereby setting aside their conviction and sentence.

No costs.

.............................................J. (A.K. SIKRI)

.............................................J. (R.K. AGRAWAL)

NEW DELHI; MARCH 31, 2017.