JUDGMENT
S.N.P. Singh, J.
1. This application in revision is directed against the order of a Judicial Magistrate, 1st Class, Hazaribagh, dated the 18th of December, 1964, passed in Case No. 15/63. T.R. 510 of 1963. By the impugned order the learned Magistrate has declined the prayer of the prosecution to examine certain persons as prosecution witnesses.
2. It is necessary to state some facts, which are not in dispute, before considering the point involved in this revision petition. A complaint petition dated the 15th of May, 1963, was filed by the Deputy Chief Inspector of Mines, Northern Zone, in the court of the Subdivisional Magistrate, Hazaribagh. The learned Subdivisional Magistrate by his order dated the 8th of June, 1963, took cognizance under Section 72-C(1)(a) and (c) read with Section 18 and Sections 23, 70, 66 and 73 of the Mines Act, hereinafter referred to as “the Act,” and summoned the three accused persons, namely, Sri Tara Prasad Bakshi, Sri K. K. Bakshi and Sri Badrinarayan Singh. By the same order he transferred the case to the file of Sri M. P. Tandon, Magistrate 1st class, for disposal. It appears that on the 16th of September, 1963, when the case was ready for hearing, Badrinarayan Singh, one of the accused persons, filed an application before the Magistrate under Section 77 of the Act in which he alleged that he had not committed the offence and named the following seven persons as the actual offenders-(1) Sanna Karmali son of Budhan Kamar, (2) Mohi Kamar son of Jainath Kamar, (3) Khewa Karmali son of Laden Kamar, (4) Nima Kamar son of Hira Kamar, (5) Bandhan Kadar son of Bigna Kadar, (6) Dasai Kamar son of Kinwa Kamar and (7) one Rambilash. It may be stated here that in the petition of complaint filed by the Deputy Chief Inspector of Mines, Sanna Karmali, Mohi Kamar, Khewa Karmali, Nima Kamar, Bandhan Kamar and Dasai Karmali were named as prosecution witnesses along with six others. On the petition filed by Badrinarayan Singh an objection was raised on behalf of the Deputy Chief Inspector of Mines to the effect that Badrinarayan Singh was not entitled to make a complaint under Section 77 of the Act. It appears that T. P. Bakshi, one of the other accused persons, had also filed an application under Section 77 of the Act on the 8th of October, 1963. An objection was also raised on behalf of the prosecution relating to that petition. The learned Magistrate by his order dated the 12th of October, 1963, held that the petition filed by Badrinarayan Singh under Section 77 of the Act was maintained as a complaint petition. He accordingly passed an order that the petition of Badrinarayan Singh be treated as a complaint as contemplated under Section 77 of the Act and the persons named therein ‘ should be summoned for the 9th of November, 1963, when the hearing was to take place. By the same order he rejected the petition filed by T.P. Bakshi. It appears that the case was ultimately transferred to the file of Sri S.N. Laha, another Judicial Magistrate 1st class. It appears that on the 18th of December 1964, the six witnesses mentioned in the complaint filed by the Deputy Chief Inspector of Mines, namely, Sanna Karmali, Mohi Kamar, Khewa Karmali, Nima Kamar, Bandhan Kamar and Dasai Karmali, were brought before the Court in view of the complaint petition filed by Badrinarayan Singh under Section 77 of the Act. A question arose before the Magistrate whether those six persons could or could not be examined as prosecution witnesses in view of the fact that they were made accused as a result of the complaint petition filed by Badrinarayan Singh. The learned Magistrate after hearing the parties held that those six persons could not be examined as prosecution witnesses and directed the prosecution to produce other witnesses. Being aggrieved by the order, the Deputy Chief Inspector of Mines filed an application in revision before the Sessions Judge, Hazaribagh. The learned Sessions Judge disagreed with the Magistrate and took the view that there was no bar to the examination of the six persons named above as prosecution witnesses. He, however, declined to make a reference to this Court under Section 438 of the Code of Criminal Procedure for quashing the order of the Magistrate. The Deputy Chief Inspector of Mine then filed this application in revision in this Court.
3. Section 77 of the Act reads as follows:
77. Where the owner, agent or manager of a mine, accused of an offence under this Act, alleges that another person is the actual offender, he shall be entitled, upon complaint made by him in this behalf and on his furnishing the known address of the actual offender and on giving to the prosecutor not less than three clear days notice in writing of his intention so to do, to have that other person brought before the court on the date appointed for the hearing of the case; and if, after the commission of the offence has been proved, the owner, agent or manager of the mine, as the case may be, proves to the satisfaction of the Court –
(a) that he has used due dilligence to enforce the execution of the relevant provisions of this Act, and
(b) that the other person committed the offence in question without his knowledge, consent or connivance,
the said other person shall be convicted of the offence and shall be liable to the like punishment as if he were the owner, agent or manager of the mine, and the owner, agent or manager, as the case may be, shall be acquitted:
Provided that –
(a) the owner, agent or manager of the mine, as the case may be, may be examined on oath and his evidence and that of any witness whom he calls in support shall be subject to cross-examination by or on behalf of the person he alleges as the actual offender and by the prosecutor;
(b) if in spite of due diligence the person alleged as the actual offender cannot be brought before the court on the date appointed for the hearing of the case, the court shall adjourn the hearing thereof from time to time so however that the total period of such adjournments does not exceed three months, and if by the end of the said period the person alleged as the actual offender cannot be brought before the court, the court shall proceed to hear the case against the owner, agent or manager, as the case may be.
There is an analogous provision in Section 101 of the Factories Act, 1948. In Section 71(1) of the Factories Act 1934 there was a similar provision which read as follows:
71(1) Where the occupier or manager of a factory is charged with an offence against this Act, he shall be entitled upon complaint duly made by him to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved, the occupier or manager of the factory, proves to the satisfaction of the Court –
(a) that he has used due diligence to enforce the execution of this Act, and
(b) that the said other person committed the offence in question without his knowledge, consent or connivance,
that other person shall be convicted of the offence and shall be liable to the like fine as if he were the occupier or manager and the occupier or manager shall be discharged from any liability under this Act.
In the case of Superintendent and Remembrancer of Legal Affairs, Bengal v. L. N. Birla A.I.R. 1939 Cal. 724 the provisions of Section 71(1) of the Factories Act, 1934, were construed and the procedure contemplated therein was explained in these words:
The complaint is made in the first instance by the Inspector of Factories against the manager or occupier under Section 60, Factories Act. The manager or occupier is then entitled under Section 71 to complain against the actual offender and if he does so, the actual offender is given notice and brought before the Court and the trial proceeds as against both persons complained against; for, as stated in Government of Bengal v. J.A. Murray I.L.R. 56 Cal. 400 at 405, the section contemplates both sets of complainants and accused being before the Court at the same time. The carriage of proceedings is with the original complainant on whom the onus lies of proving that the offence has been committed. Both parties complained against are concerned with the finding on this issue and both are entitled to cross-examine the prosecution witnesses at this stage, and to lead evidence to disprove the charge, but being accused persons they would not be entitled to give evidence themselves. If the prosecution fails to prove the offence both the accused must be acquitted. If the offence is proved, the Court should record an order to that effect and the manager or occupier is guilty under Section 60 of the Act. Section 71 however affords the manager or occupier an opportunity of escaping liability provided he can give satisfactory proof of the facts required by Section 71(1)(a) and (b). The onus of proof however is now shifted to the manager or occupier and he is entitled to call evidence or to give evidence himself. The actual offender, who is, if I may so name him, the ultimate accused, would be entitled to call evidence but not to give evidence himself. The difference in procedure being due to the fact that the actual offender occupies the role only of an accused, whereas the occupier or manager at this stage, besides being an accused, has to discharge the onus of positive proof required by Section 71(1)(a) and (b), and in all probability he alone is capable of proving certain facts of which proof is thereby required.
It appears that before the Magistrate as well as before the learned Sessions Judge reliance was placed on behalf of Badrinarayan Singh on some of the observations, specially the observation, “The actual offender, who is, if I may so name him, the ultimate accused, would be entitled to call evidence, but not to give evidence him-self.” Mr. Brajeshwar Prasad Sinha, learned Counsel appearing for the Deputy Chief Inspector of Mines, submitted before us that the facts of the present case are entirely different from the facts of the Calcutta case and the observation, referred to above, is not applicable to the facts of the present case. According to learned Counsel, the Magistrate has taken an erroneous view in disallowing the prayer of the prosecution to examine the six persons as prosecution witnesses. On a careful considerations of the provisions of Section 77 of the Act, I am inclined to accept the contention of learned Counsel appearing for the petitioner that in the instant case the Magistrate erroneously shut out the prosecution from examining the six persons as witnesses. Under Section 77 of the Act the question whether the owner, agent or manager of a mine committed the offence or the offence has been committed by any third person named by the owner, agent or manager of the mine, as an accused in the complaint made by him, could only arise “after the commission of the offence has been proved”. If the commission of the offence is not proved then the question as to who has committed the offence will not arise. In the instant case the Deputy Chief Inspector of Mines has not yet proved the commission of the offence. The evidence of the six witnesses, who have been named as accused in the petition filed by Badrinarayan Singh, may be important to prove the commission of the offence and in my opinion there is nothing in Section 77 of the Act which would debar the six persons from giving evidence in support of the commission of the offence. To hold otherwise would lead to absurd position; for instance, Badrinarayan Singh might as well have named as accused in the petition filed by him under Section 77 of the Act all the twelve persons who were named as witnesses in the petition of complaint filed by the Deputy Chief Inspector of Mines and thereby shut them out from giving evidence on behalf of the Deputy Chief Inspector of Mines. Of course, when the question whether the offence has been committed by the accused persons named in the petition of complaint filed by the Deputy Chief Inspector of Mines or by the six persons or any one of them named in the petition of complaint filed under Section 77 of the Act Badrinarayan Singh will be for consideration before the Court, the above-mentioned six persons cannot be examined as prosecution witnesses. If they so like, they can examine themselves as witnesses for the defence under Section 342-A of the Code of Criminal Procedure to disprove the allegations made against them. The position no doubt appears to be somewhat anomalous but in view of the unusual provisions contained in Section 77 of the Act no other construction regarding the procedure as contemplated under Section 77 of the Act appears to be just and proper. If a contrary view be taken it will be very easy for an agent, owner or manager of a mine, accused of an offence under the Act, to stifle the prosecution by naming all the prosecution witnesses in a complaint filed by him as the persons who committed the offence.
4. In the course of argument learned Counsel appearing for the Deputy Chief Inspector of Mines submitted that there is a lacuna in Section 77 of the Act inasmuch as there is no check on the owner, agent or manager of a mine to make a complaint against any person. On a reading of Section 77 of the Act it certainly appears that an absolute right has been given to the owner, agent or manager of a mine accused of an offence under the Act to allege that another person is the actual offender. There is nothing in Section 77 of the Act to guard against the frivolous accusation made by the owner, agent or manager of a mine against a third person. The Magistrate has not even been given the power to consider whether there is a prima facie case against the person named by the owner, agent or manager of a mine accused of an offence under the Act, as the case may be, before bringing that person before the Court. However, this is a matter for the appropriate authorities to look into.
5. For the reasons stated earlier, this application is allowed, the order of the Magistrate is set aside and it is directed that the Magistrate will now allow the six persons named above to be examined as prosecution witnesses and proceed in accordance with law in the light of the observations made above.
S. Wasiuddin, J.
6.I agree.
