Union of India Vs. Shri A.B. Shah & Ors  INSC 707 (9 May 1996)
K. (J) Venkataswami K. (J) Hansaria B.L. (J) K.Venkataswami,J.
JT 1996 (5) 128 1996 SCALE (4)307
by the judgment in Criminal Appeal no.24/81 dated 26.8.1988 on the file of
Bombay High Court (Nagpur Bench), this appeal is filed by special leave.
appellant preferred a complaint under section 73 of the Mines Act 1952
(hereinafter referred to as "the Act") read with Regulation No. 100
(1) of the Coal Mines Regulations 1957 (hereinafter referred to as "the
Regulation"). The facts leading to the filing of this Appeal may be stated
in brief to appreciate the contentions raised before us. The facts are as under
Colliery originally was owned by the Oriental Coal Company Limited. At the
instance of the agent of Oriental Coal Company Limited, the Director General of
Mines Safety granted permission on 2.1.1971 under Regulation 100(1) of the
Regulations to split pillars in conjunction with hydraulic sand stowing in No.
1 seam in the area. Later on, the agent of the Oriental Coal Company Limited
applied for certain modifications in conditions Nos. 5 and 6 which was granted
on 14.6.1971. Subsequently, on 30.1.1973, the possession of the coal mines was
taken over by the Central Government and the ownership of the said coal mines
vested in the Coal Mines Authority on 9.8.1973. The Deputy Director of Mines at
Nagpur made an inspection on 2.4.1974 and
found that the sizes of split galleries were about 8.2 meters. It was in
violation of condition No.1 imposed by the Director of Mines Safety. The agent
was called upon to explain the violation by the Joint Director of Mines Safety
by his letter dated 30.4.1974. A reply was sent on 13.5.1974.
was called for from respondent No.1 on 10.8.1974. No reply was received, inspite
of several reminders. The Deputy Director of Mines Safety again inspected the
mines in question on 26.8.1975, along with the agent. and found the violation
of condition No.1 continuing and also found that the adjacent galleries were
not kept stowed of the pillar where splitting had commenced. After the taking
over of mines as mentioned above. the coal mine in question formed part of the
Western Coal Fields Limited.
concerned persons had not complied with the conditions subject to which the
splitting of pillars in conjunction with hydraulic sand stowing was granted,
the Inspector (now, Deputy Director of Mines) filed a complaint in the Court of
Judicial Magistrate, First Class, Ramtak, Nagpur, alleging contravention of the
conditions of permission. The Trial Court framed charges accordingly to which
respondent Nos. 1 to 4 pleaded not guilty and claimed to be tried. Two
principal contentions were advanced in defence before the Trial Court. They
were that the complaint was barred by limitation prescribed under Section 79 of
the Act and in any case, respondent Nos. 1 to 4 were not in management of the
coal mines in question when the alleged offence was alleged to have been committed
and, therefore, they could not be criminally proceeded against.
learned Trial Judge accepted both the contentions of respondent Nos. 1 to 4 and
consequently acquitted them.
appeal preferred by the appellant, the High Court also confirmed the acquittal
accepting the same contentions.
the present appeal.
dealing with the question of law that arises for Our consideration, we want to
express our anguish that we did not get the required assistance in this case.
The appellant except filing the Judgment of the High Court and the grounds for
special leave did not take any step, inspite of passing of 13 years to file
other important relevant papers to help the Court in deciding the issue, i.e.
the judgment of the Trial Court, the charge sheet filed in the Trial Court, the
evidence - both oral and documentary, reply given by the agent for the initial
notice etc. They are all required to fully appreciate the issue raised before
us. The further agony is that inspite of notices served on the respondents,
none appeared before us to answer the contentions raised in this Appeal. In
this state of affairs, we have decided the issue on the basis of the typed
judgment of the High Court which alone is made available, apart from the
grounds in the special leave petition.
learned counsel appearing for the appellant submitted that the Trial Court as
well as the High Court grossly erred in not accepting the contention put
forward on behalf of the complainant/appellant that the offence committed by
the respondents being 'continuing' in nature falling under Explanation (a) to
Section 79 of the Act, the complaint was not barred by time. He also submitted
that the High Court having rightly noted that out of 10 conditions,
non-compliance of condition Nos. 3 and 6 would fall under `continuing offence',
fell into an error in holding that all the conditions must be read
conjunctively and not disjunctively. If the offence is a `continuing offence'
falling under Explanation (a) to Section 79 of the Act, then notwithstanding
the fact that respondent Nos. 1 to 4 were not in office when the offence was
first detected, they are answerable to the charges levelled against them.
have perused the judgment of the High Court. Before going to the actual
question, it is necessary to set out the conditions subject to which the
permission was granted. As the document was not typed and produced before us,
we are setting out the relevant portion from the judgment of the High Court
which reads as follows :
the letter ex.27 dated 2nd
January 1971, the
Director General of Mines Safety granted to the Agent of the Messrs. Oriental
Coal Company Limited, Kamptee Colliery "permission under regulation 100(1)
of the Coal Mines Regulations, 1957 to split pillars in conjunction with hydraulic
sand stowing in No.
in the area indicated in plan No.1 Dep/15/70 dated 26.6.70 at Kamptee
Colliery" subject to the following conditions :
Each pillar shall be divided into four equal stooks by central dip and level
splits. For different depths, the maximum and minimum dimensions of galleries
and stooks respectively shall be as follows :
depth Gallery which Stooks shall be not exceeding shall not less than exceed 60
metres 5.4 metres 5 mts x 5 mts 90 metres 5.4 metres 6.6 mts x 6.6 mts 120 metres
5.4 metres 9 mts x 9 mts 153 metres 4.8 metres 10.5 mts x 10.5mts
final height of original and split galleries shall not exceed 3.6 meters.
After splitting is completed all original and split galleries shall be stowed
solid with sand.
more than two pillars shall be under splitting at any time in a panel.
pillar shall not be split unless all original and split galleries on the inbye
side have been fully stowed.
more than a total length of 45 meters of split shall be left unstowed at any
time in a whole panel. (Emphasis added)
Before starting splitting of pillars in a panel, it shall be insolated by stoppings
in compliance with the provisions of regulation 100(4) of the Coal Mines
Regulation, 1957, and an intimation to that effect shall be sent to this
Directorate and the Joint Director of Mines Safety. These stopping shall be
constructed to the specifications laid down in this Directorate Circular No.17
of 1964 as modified by Circular No.1 of 1968.
splitting or reduction of pillars shall be done beneath and in the vicinity of
dwelling/building or public road, if any, likely to be affected by the
the event of any change in the circumstances connected with this splitting
permission, which is likely to affect the safety of the work persons or the
mine or the surface features, an intimation shall be sent immediately to this
Directorate and the Joint Director of Mines, Safety and splitting operations
shall be stopped. The splitting of pillars shall not be resumed, except with
permission in writing from the Director General of Mines, Safety.
The above permission may be amended or withdrawn at any time, if considered
letter ex.28 dated 8th
April 1971, the Agent
of the Oriental Coal Company, Kamptee Colliery applied to the Director General
of Mines Safety, for certain modifications in conditions Nos. 5 and 6 of the
above conditions and by the letter Ex.31 dated 14.6.1971 the Director General
of Mines, Safety accepted the proposal and modified these conditions. These
modified conditions were as follows :
pillar shall not be completely split unless all original and split galleries on
the inbye side have been fully stowed.
the word "completely" was added) and Condition No.6: Not more than
150 meters of split galleries shall be left unstowed at anytime in the whole
panel. (i.e. the figure "150 meters" was substituted for the original
words "45 meters").
seen from the judgment of the High Court that it accepted that violation of
condition Nos. 3 and 6 would constitute `continuing offence' in the light of
Sections 73 and 79 of the Act read with Regulation 100 of the Regulations. The
High Court however held as follows :
Shri Bobde for the respondents Nos. 1 to 4 very rightly pointed out that the
gist of the offence alleged under Section 73 of the Mines Act, 1952 in the
present case is `dipillaring' in breach of the conditions contained in Ex.27
dated 2.1. 1971 and not the breach of the said conditions themselves.
the provisions of Section 73 of the Mines Act, 1952, it was pointed out that
the section contemplates 3 categories of contraventions made punishable thereunder
Contravention of any provisions of the Mines Act, 1952, or
Contravention of any regulation, rule or bye-law made under the Mines Act, 1952
(i.e.subordinate legislation), or
contravention of any order made under any provisions of the Mines Act, 1952 or
under any regulation, rule or bye-law made under the Mines Act, 1952 (i.e.
contravention of order made under any subordinate legislation under the Mines
present was not a case falling under the category (a) or (c) above. There was
no order made in writing as would come within the ambit of category (c). The
permission Ex.27 dated 2.1.1971 was not an "order" made under the
Mines Act, 1952 or under the provisions of any subordinate legislation thereunder.
Shri Bobde pointed out instances of provisions for making of such orders by
reference to section 22 and 72(b) of the Mines Act, 1952 and to Regulations
Nos.65, 101, 103 and 128 of the Coal Mines Regulations 1957. Shri Bobde is
entirely right in these contentions. The gist of the offence alleged in the
present case is "depillaring" in contravention of the conditions in
Ex.27 dated 2.1.1971 on which permission to depillar was granted. Breach of any
of these conditions by itself is not punishable under Section 73 of the Mines
Act, 1952." The High Court further held in paragraph 12 as under :
Shri Bobde very rightly pointed out that the ten conditions contained in the
letter Ex. 27 dated 2.1.71 have to be read together as a whole and not one or
two of them separately and in isolation without the context.
ten are the composite conditions on which permission to depillar is granted. Shri
Bobde drew my attention to the title mentioned at the subject of the letter Ex.
27 dated 2.1.71 which in essence is "permission - to split pillars in
conjunction with hydraulic sand stowing -" stowing with sand is, therefore,
intended as an integral part of the operation of splitting pillars, i.e.
depillaring and does not stand on its own independent basis. Shri Bobde pointed
out that there is no provision in the Mines Act, 1952 or the Coal Mines
Regulations 1957 under which the running of a mine with a failure to stow after
depillaring is itself made an offence. The charge in the present case is in
respect of breach of regulation 100 (1), the subject of which is
"Depillaring operation", in essence the charge is "Depillaring"
or "splitting" in breach of the conditions on which permission to
split pillars was granted vide letter Ex.27 dated 2.1.1971." So far as
condition No.6 is concerned, the High Court held as follows :
the words "at any time" contained in condition No.6" not more
than 150 meters of split galleries shall be left unstowed at any time in the
whole panel" necessarily imply "during the operation of
splitting", and are not indicative of a state of continuity in the mines
year after the splitting is completed, as a continuing contravention punishable
under Section 73 of the Mines Act, 1952, read with Regulation 100(1) of the
Coal Mines Regulations 1957.
offence is, therefore, not a continuing one, it is completed as soon as
splitting or dipillaring is commenced or conducted or carried out in breach of
any of the conditions on which permission to depillar was granted." Now,
the issue is whether the High Court was right in coming to the conclusion that
the offence was not a 'continuing offence' on the main ground that all the
conditions must be read together.
State of Bihar vs. Dev Karan (AIR 1973 SC 908)
this Court had the occasion to consider the meaning of 'continuing offence'
falling under Explanation (a) to Section 79 of the Act. This Court held as
follows in para 5:
offence is one which is susceptible of continuance and is distinguishable from
the one which is committed once and for all. It is one of those offences which
arise out of a failure to obey or comply with a rule or its requirement and
which involve a penalty, the liability for which continues until the rule or
its requirement is obeyed or complied with. On every occasion that such
disobedience or noncompliance occurs and recurs there is the offence committed.
The distinction between the two kinds of offences is between an act or omission
which constitutes an offence once and for all and an act or omission which
continues and therefore constitutes a fresh offence every time or occasion on
which it continues. In the case of a continuing offence, there is thus the
ingredient of continuance of the offence which is absent in the case of an
offence which takes place when an act or omission is committed once and for
all." Bearing the above principle in mind, we have to find out whether the
offence committed by the respondents, in particular violation of conditions
Nos. 3 and 6, could be treated as 'continuing offence' or completed offence. To
appreciate this, we must also bear in mind the object and purpose of the Act.
This we can get from the long title which reads "An Act to amend and
consolidate the law relating to the regulation of labour and safety in
look into condition Nos.3 and 6 with the object and purpose of the Act in mind.
it has to be held that these conditions are not only relatable to what was
required at the commencement of dipillaring of process, but the unstowing for
the required length must exist always. The expression "at any time"
finding place in condition No.6 has to mean, in the context in which it has
been used, "at any point of time", the effect of which is that the
required length must be maintained all the time. The accomplishment of object
of the Act, one of which is safety in the mines, requires taking of such a
view, especially in the backdrop of repeated mine disasters which have been
taking, off and on, heavy toll of lives of the miners. It may be pointed out
that the word "any" has a diversity of meaning and in Black's 'Law
Dictionary' it has been stated that this word may be employed to indicate
"all" or "every", and its meaning will depend "upon
the context and subject matter of the statute". A reference to what has
been stated in Stroud's 'Judicial Dictionary' Vol.I, is revealing inasmuch as
the import of the word "any" has been explained from pages 145 to 153
of the 4th Edition, a perusal of which shows it has different connotations
depending primarily on the subject matter of the statute and the context of its
use. A Bench of this Court in Lucknow Development Authority vs.M.K. Gupta 1994
(1) SCC 243, gave a very wide meaning to this word finding place in the section
2(o) of the Consumers Protection Act, 1986 defining "service".(See para
therefore, hold that the aforesaid conditions have to be obeyed always,
disobedience of which shall become "continuing offence," in the light
of what has been stated in the decision of Dev Karan (supra). So, even if other
conditions are held to be falling under completed offence, violation of
condition Nos. 3 and 6 cannot be so treated as to invoke the time limit
prescribed under Section 79 of the Act. Therefore, we are inclined to differ
from the view taken by the High Court and hold that violation of conditions
Nos. 3 and 6 are 'continuing offences' and the charge framed is not barred by
limitation. Once this conclusion is reached, the plea taken by respondent Nos.
1 to 4 that they were not the concerned officers when the offence was detected,
will not hold water. Consequently, the preliminary objection raised by the
respondent Nos.1 to 4 cannot be sustained.
appeal is, therefore, allowed. The matter is remanded to the Trial Court for
disposal on merits in accordance with law.
Pages: 1 2