1. The petitioners, who at the relevant time were respectively serving as "Overman" and "Sirdar" in the Eklehra Colliery situate in tahsil and district Chhindwara, are being prosecuted under Section 304A, Indian Penal Code, in two trials as there were two deaths as a result of their negligence while working as such "Overman" and "Sirdar" (Criminal Cases Nos. 164 of 1964 and 165 of 1964).
2. The prosecution case in short is that the petitioners as such "Overman" and "Sirdar" were to periodically inspect the roof inside the mine where working was going on; that the roof at a certain place inside the mine collapsed killing two persons underneath its debris; that if the said roof had been duly inspected by the petitioners, its weakness and imminent danger of its collapsing would have been detected and remedied and deaths of the two individuals would have been averted.
3. The petitioners contended before me, as was unsuccessfully contended in the Courts below, that their prosecution under Section 304A, Indian Penal Code, is incompetent, since the negligence attributed to them is made punishable under the Mines Act which being a special law excludes the operation, if any, of the Indian Penal Code. In fact, it was contended that the negligence attributed to them does not at all come within the mischief of Section 304A, Indian Penal Code, but attracts, if at all, the provisions of the mines act and the Regulations framed thereunder. It was also pointed out in the course of the arguments that they have been duly punished under the said Act.
4. Since there appears no dispute that the facts, alleged against the petitioners, if proved, may render them guilty under the Mines Act and the Regulations thereunder, the only question that falls for determination in the instant petition as also in the connected other petition (Criminal Revision No. 715 of 1964) is whether those facts would or would not constitute an offence punishable under Section 304A, Indian Penal Code. If the answer is "No" then the criminal proceedings as commenced against the petitioners in both the cases have to be quashed, leaving the prosecution at liberty to start proceedings afresh in the manner laid down by the Mines Act and the Regulations thereunder.
5. A common question of law is involved in both the petitions, the instant one as also the other (Criminal Revision No. 715/64); this order shall govern the disposal of both.
6. The provisions of the mines act and the Regulations framed thereunder relevant for purposes of these petitions are as under:
"Section 72C. Mines Act:--
(1) Whoever contravenes any provision of this Act or of any regulation, rule or by-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), shall be punishable---
(a) if such contravention results in loss of life, with imprisonment which may extend to two years, or with fine which may extend to three 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 mav 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. . . ."
"Regulation No. 113 of Coal Mines Regulations, 1957:--
1. Every place in a mine, whether below ground or in open-cast workings, including travelling roadways and landings, where work is carried on or where persons are stationed or required to pass shall be placed under the charge of a sirdar or other competent person.
2. The mine or district assigned to a sirdar or other competent person shall not be of such a size, nor shall any additional duties other than his duties under the regulations be such, as to be likely to prevent him from carrying out in a thorough manner the duties prescribed for him under the regulations. If any doubt arises as to the foregoing, it shall be referred to the Chief Inspector for decision.
3. (a) At the entrance to every mine or district, one or more stations shall be fixed by the manager; and except in the case of a mine working in a continuous succession of shifts, no person other than the persons making the examination under Clause (b) or an official shall pass beyond any such station until all the roadways and working places to which such persons are required to have access, have been examined by the competent person in charge of the mine or district and found to be satisfactorily ventilated and in safe condition. Every such station shall be legibly marked "STATION" and shall be of such a size as to accommodate all the persons employed in the district in any one shift.
(b) The sirdar or other competent person, accompanied by such assistants as he requires shall, within two hours before the commencement of work in a shift, inspect every part of the mine or district assigned to him, in which persons have to work or pass during the shift, and all roadways and working places where work is temporarily stopped; and shall ascertain the condition thereof as regards ventilation, sanitation the presence of gases, the state of the roof and sides, and generally so far as the safety of the persons is concerned:
Provided that in the case of a mine to which regulations 122(2) and 144 apply such inspection shall be made with an approved flame safety lamp; and that in the case of a district to which regulation 122 (2) applies, a cage containing suitable birds or other means of detecting carbon monoxide gas approved by the Chief Inspector shall also be carried during every such Inspection.
(c) Similar inspection shall be made once at least in every four hours during which the shift continues, of all the roadways and other working places to which persons engaged in the mine or district or required to have access.
. . . ."
7. The charge against the petitioners, as has already been pointed out in the beginning, is that they failed to periodically inspect the \vorking place or places under their charge and as a result of their failure to do so, the roof, which otherwise would have been duly protected and supported, collapsed and killed two individuals. Thus, the charge of negligence is of negligence by omission. Therefore, the question is whether such negligence by omission is or is not one contemplated by and coming within the mischief of Section 304A, Indian Penal Code.
8. True it is, that Section 304A, Indian Penal Code, requires that it must be some rash or negligent "act" of the accused and that it must also be the proximate cause of death. But a perusal of Section 32 of the Penal Code would show that wherever in the Code words refer to "acts" they, unless contrary intention in using those words appears, extend to "illegal omissions". So in order that the omission may be penalty liable it has to be illegal. What the word "illegal" means is defined in Section 44 of the Penal Code thus:
"The word 'illegal' is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be 'legally bound to do' whatever it is illegal in him to omit"
.
9. Now omission is not like an act, a real event, but is merely an artificial conception, consisting of the negation of a particular act. It may be due to pure and simple passivity, or due to commission of some acts inconsistent with the act omitted. We are here concerned with pure and simple passivity.
10. It cannot be disputed that the petitioners, having agreed to work as Overman and Sirdar, will be deemed to have undertaken the performance, as such Overman and Sirdar, of various duties which under the Mines Act and the Regulations framed thereunder have been enjoined upon them. It is apparent that their duty to see that roofs are properly supported does not come to an end once the props are erected. The working inside the mines is such that the supports to the roof have to be, for obvious reasons, inspected periodically. The constant overhead pressure on the roof as also the stress and strain thereon put by the work going underneath must be bringing about constant change and variation in the structure of the roof itself necessitating its periodical inspection. This periodical inspection is apparently required so that, if found necessary, additional measures may be taken in time to protect it against collapse or other similar failures. The omission on the part of the petitioners to make periodical inspection, provided it is established, was definitely illegal and would prima facie render them penalty liable under Section 304A, Indian Penal Code. I am also supported in this view by the case of F. C. Woodward v. Emperor, AIR 1925 Sind 233 where similar omission by the accused there was held to be an offence punishable under Section 304A, Indian Penal Code.
11. However, whether the omission in question in the instant prosecution was or was not rash or negligent to such an extent as to render the negligent party penally liable will be a matter to be decided hereafter by the trial Court on the evidence that may be produced before it. I have deliberately refrained from making any observations either on that matter or even on the question as to whether the duty which the petitioners omitted to perform excludes or not the element of mens rea as an essential ingredient of the offence with which they are charged. All these matters are to be decided by the trying Magistrate on the material that may be made available to him by the prosecution hereafter. Any observation made by me herein and likely to suggest exclusion of the element of mens rea may not be accepted as any final opinion by me. For, no arguments were advanced on that question.
12. Thus, in the view as aforesaid, I do not feel disposed to accept the contention that the petitioners cannot be prosecuted or charged under Section 304A, Indian Penal Code, and have to be prosecuted only under the provisions of the Mines Act. It is well settled that where an act or omission is punishable under two enactments the prosecuting agency is at liberty to press into service either of the two enactments, Accordingly I reject this petition as also the connected petition.