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The State of Mysore Vs. P.C. Sarangapani Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtKarnataka High Court
Decided On
Case NumberCriminal Appeal No. 142 of 1956
Judge
Reported inAIR1960Mys245; 1960CriLJ1227
ActsIndian Mines Act, 1952 - Sections 74; ;Indian Metalliferous Mines Regulations, 1926 - Regulations 38, 39, 40, 41, 43(1), 45 and 91; General Clauses Act - Sections 24
AppellantThe State of Mysore
RespondentP.C. Sarangapani Mudaliar and ors.
Excerpt:
.....act of 1952 so as to be perfectly valid and as the prosecution was launched ling thereafter the rules framed under the repealed act must be held to have been perfectly valid and part of the law in force within the meaning of the expression in art. 24 of the general clauses act clearly shows that it is intended to apply to all rules and regulations, whether they are rules and regulations simpliciter or whether they are rules and regulations which 'shall have effect as if enacted under this act'.it is manifest that the regulations are in factual existence as regulations, though for many purposes they are treated as if they are enacted in the statute. after carefully examining the matter we have no doubt in our minds that the prosecution under section 74 of the mines act of 1952 for..........several charges framed against them under the indian mines act read with the indian metalliferous mines regulations of 1926.(2) the facts of the case are simple and briefly stated are as follows : the first respondent p. k. sarangapany mudaliar obtained a prospecting license from the state of mysore for exploiting manganese ore in an area known as venkajigudda in the year 1951 and has been working the mines ever since. respondents 2 to 5 are connected with those mines as they are working under the first respondent. on 23-12-1954 there was an accident at about 10-30 a.m. in 'vajra block' of venkajigudda manganese mines which resulted in the death of six of the labourers working in the mines and injuries to some others.the accident was due to the collapse of the side walls of the mines......
Judgment:

(1) This is an appeal by the State against the judgment dated 25-8-1956 of the Munsiff-Magistrate, Tiptur in Criminal case Number 44 of 1955 acquitting the respondents of the several charges framed against them under the Indian Mines Act read with the Indian Metalliferous Mines Regulations of 1926.

(2) The facts of the case are simple and briefly stated are as follows : The first respondent P. K. Sarangapany Mudaliar obtained a prospecting license from the State of Mysore for exploiting manganese ore in an area known as Venkajigudda in the year 1951 and has been working the Mines ever since. Respondents 2 to 5 are connected with those mines as they are working under the first respondent. On 23-12-1954 there was an accident at about 10-30 A.M. In 'Vajra Block' of Venkajigudda Manganese Mines which resulted in the death of six of the labourers working in the Mines and injuries to some others.

The accident was due to the collapse of the side walls of the Mines. The matter was reported to the District Magistrate and the Mines Inspector A. S. Giri Rao (third respondent) by means of telegrams. After taking the necessary rescue operations the dead bodies of the labourers were removed out of the debris and some of the labourers who had been buried were rescued. The Inspector of Mines inspected the mining area and took up the investigation of the causes of the accident.

After examining some of the labourers and the mining area, he came to the conclusion that the respondents had not taken the necessary precautions contemplated under Regulations 38, 39, 40, 41, 43(1), 45 and 91 of the Indian Metalliferous Mines Regulations and had been thereby responsible for the accident. He, therefore, placed a charge-sheet against the five respondents before the Munsiff-Magistrate, Tiptur for offences punishable under Regulations 38, 39, 40, 43(1) and 45 of the Indian Metalliferous Mines Regulations read with Section 74 of the Indian Mines Act of 1952.

All the respondents pleaded not guilty to the several charges when the accusations were read over and explained to them by the learned Magistrate. The Prosecution examines some witnesses to establish that the respondents had not taken necessary precautions as contemplated in the Indian Metalliferous Mines Regulations and in particular evidence was adduced to prove that the respondents had not sloped, stepped or secured the walls of the mines in such a manner as to prevent danger from falls of material; that they had not danger from falls of material; that they had not worked in the steps and benches of sufficient breadth with the height of the Mines to secure safety for the labourers and had not removed the overburden and all loose ground and material sufficiently far away from the edge in order to prevent danger to persons employed in the Mines and as a consequence of these acts of omission and commission, the earth and the walls gave way on the date of accident which resulted in the death of six persons and injuries to several others.

On the evidence so adduced the learned Magistrate came to the conclusion that the prosecution had failed to establish that the respondents had not taken the necessary steps as contemplated in the Regulations to prevent the accident that no evidence was adduced to prove the condition of the Mines prior to the accident and that the respondents were entitled for the benefit of doubt. The learned Magistrate further held that in view of the fact that the Indian Mines Act of 1923 had been replaced by the Mines Act of 1952 and rules & Regulations had not yet been framed under the new Act, the respondents were not liable to be convicted for infringement of any of the Rules and Regulations framed under the Act of 1923 which had been repealed and replaced by Act 35 of 1952.

In the opinion of the learned Magistrate the Indian Metalliferous Mines Regulations of 1926, which were alleged to have been infringed by the respondents were not in force at the relevant period and that the respondents could not, therefore, be convicted for infringement of any of the provisions of the said Regulations. Accordingly he acquitted the respondents. Being aggrieved by the judgment of acquittal the State has preferred this appeal.

(3) It was urged by the learned Magistrate was not justified in coming to the conclusion that the prosecution had not placed sufficient material before the Court to prove that the accident was due to the non-observance of the mandatory provisions of the Mines Act and the Indian Metalliferous Mines Regulations by the respondents.

He contended that the evidence on record and the circumstances proved in the case, clearly indicated that the respondents had not taken all the necessary steps to prevent the fall of the walls by sloping, stepping or securing the sides and had actually deposited the overburden and loose ground and material just on the edge of the walls of the Mines and were thereby responsible for the accident. He took us through responsible for the accident. He took us through the entire evidence adduced by the prosecution. We scrutinised the evidence in the light of the arguments of the learned Advocate-General.

Majority of the witnesses, who were admittedly present at the spot at the time of the accident did not support the prosecution case while they gave evidence in Court and consequently they were treated as hostile by the Public Prosecutor. Opinion expressed by the other Witnesses, who visited the spot after the accident is almost based on conjectures and surmises. In the result, therefore, there was no direct and creditworthy evidence adduced by the prosecution as to the accident and to prove that the respondents had not taken the necessary and obligatory measures to safeguard the lives of labourers working in the Mines.

We are not prepared to subscribe to the suggestion of the learned Advocate-general that though the prosecution had failed to establish by adducing oral evidence that the respondents had not taken all necessary steps and precautions as contemplated under the Rules and Regulations framed under the Mines Act, the Court should reach that conclusion solely on the evidence of the experts, who visited the premises immediately after the occurrence.

He contended that the Inspector of Mines and the other official witnesses examined in the case were all of the unanimous opinion that the accident would not have happened if there was proper sloping width had been prepared and the loose earth removed from the Mines had not been stocked just on the edge of the side of the Mines and there was no reason to reject the expert evidence. There is no substance in this contention. It is the very essence of a criminal trial that it must be decided on the legal evidence placed on record and not conjectures.

The burden of establishing that the respondents had infringed the several rules a relating to the working of the Mines and that the accident was entirely due to their negligence was entirely on the prosecution. The prosecution was bound to establish by adducing evidence of competent witnesses that the provisions of Regulations 38, 39, 40 and 41 had been infringed by the respondents and as a result of such infringement the accident occurred.

It is not doubt true that some of the circumstances show that the accident was probably due to the non-observance of the rules and regulations by the respondents. The evidence of the Mine Experts and others, who inspected the premises subsequent to the date of the accident examined in the case in a way indicates that the respondents had not probably taken the necessary steps contemplated under Regulations 38 to 41 to prevent the accident, however strong it may be.

The fact that in the circumstances of the case it was difficult for the prosecution to get independent and direct evidence cannot be a ground to dispense with such evidence. In the circumstances proved in the case the learned Magistrate, in our opinion, was justified in giving the benefit of doubt to the respondents and acquitting them. We do not see any valid grounds to interfere with the order of acquittal.

(4) The above conclusion reached by us on assessment of the evidence adduced in the case is quite sufficient for disposal of this appeal but the learned Advocate-General invites us to decide the question of law raised in the case. He contended that the conclusion reached by the learned Magistrate that there can be no valid prosecution for infringement of any of the Regulations of the Indian Metalliferous Mines Regulations of 1926, since they are kept alive by legal fiction under Section 24 of the General Clauses Act, is unsound and is likely to lead to confusion and chaos and we should, therefore, express our opinion against it and prevent its mischief. Since the question raised is of considerable importance affecting the working of the Mines Act, we proceed to consider the same.

(5) The learned Magistrate is of the view that the Indian Metalliferous Mines Regulations of 1926 framed under the Indian Mines Act of 1923 which have been kept alive by virtue of Section 24 of the General Clause Act cannot be considered to be 'law in force at the time of the commission of the act charged as an offence' as understood in Art. 20 of the Constitution of India and therefore, the breach of infringement of those Rules or Regulations cannot be the basis for a valid prosecution and conviction.

The Indian Mines Act of 1923 which was in force was repealed and replaced by the Indian Mines Act of 1952(Act 35 of 1952). There are on saving clauses in the new Act which have preserved the various Rules and Regulations framed under the Old Act. On the other hand there are provisions in the new Act which empower the Central Government to frame rules, bye-laws and Regulations for the proper working of the Act.

The Central Government has not yet framed any Regulation or Rules, under the new Act. In the absence of saving clauses in the new Act the rules, regulations and bye-laws made under the old Act or operative under Section 24 of the General Clauses Act. Section 24 of the General Clauses Act so far as it is relevant for our purpose says :

'Where any Central Act................ is, after the commencement of this Act, repealed and reenacted with or without modification, then, unless it is other wise expressly provided, any x x x rule x x x or bye-laws made or issued under the repealed Act x x x shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any x x rule x x or bye-laws made or issued under the provisions so re-enacted.'

It is thus clear that in the absence of express provision to the contrary in the new Act, the Indian Metalliferous Mines Regulations framed under the repealed Act are deemed to have been issued under the new Act. The object to the General Clauses Act is to preserve the various Regulations enacted under the repealed Act to ensure continuity of the object and purposes of the Act and to prevent confusion, hardship and injustice.

If the view of the learned Magistrate that the Regulations are obliterated with the repealed Act is accepted. The continuity of the objects and purposes of the Mines Act are destroyed. We are sure in our mind that the Legislature never intended to create such a situation. The learned Magistrate appears to have placed reliance on a decision of the Andhra High Court in In re Lingaraddi Venkatareddi, AIR 1956 Andhra 24, in coming to the conclusion that no prosecution can be launched for breaches of the Indian Metalliferous Mines Regulations of 1926.

Their Lordships of the Andhra High Court held in that case that the rules framed under the Minea Act of 1923 cannot be described as law in force within the meaning of Art. 20 of the Constitution of India and the accused cannot be convicted for infringement of the rules framed under the old Mines Act after the new Mines Act (Act 35 of 1952) came into force, even if the rules and Regulations framed under the old Act are kept alive by virtue of Section 24 of the General Clauses Act.

In coming to this conclusion their Lordships of the Andhra High Court relied upon some observations of their Lordships of the Supreme Court in Shiv Bahadur Singh v. State of Vindhya pradesh, : 1954CriLJ1480 . With due respect to their Lordships of the Andhra High Court, we feel that their Lordships read much more in the Supreme Court case than the judgment of that case warranted.

In the Supreme Court case referred to above their Lordships were dealing with ex post facto legislation and therefore, there was no occasion for their Lordships to consider the effect of the Rules, Bye-laws and Regulations which are kept alive by virtue of Section 24 of the general Clauses Act after the Act under which they were framed was repealed and replaced by another Act. If this distinction had been pointed out to their Lordships of the Andhra High Court we are sure they would not have come to the conclusion they did in the case before them.

The view taken by their Lordships of the Andhra High Court in the case above referred to was dissented from by the Calcutta High Court in G. D. Bhattar v. The State, : AIR1957Cal483 . Dealing with this question as to whether a prosecution for breach of any of the rules framed under the Indian Mines Act of 1923 which was repealed and replaced by the Indian mines Act of 1952, was sustainable their Lordships observed as follows :

'The next point argued by Mr. Mukherjee arises from the fact that the rules which are said to have been contravened are rules which are said to have been contravened are rules under the old Mines Act, namely, the Act of 1923 and not rules under the Mines Act, that is the Act of 1952. The prosecution's answer to this was that under Section 24 of the General Clauses Act the rules framed under the repealed Act will be deemed to be rules framed under the new Act and the point raised by Mr. Mukherjee is that a law which really did not exist and which came into existence by means of a legislative fiction introduced by Section 24 of the General Clauses Act would not be treated as a living piece of legislation the contravention of which would be an offence.

In support of this contention he has relied in the first place on a Supreme Court decision in the case of : 1954CriLJ1480 , and secondly on a decision of the Andhra High Court in the case of AIR 1956 Andhra High Court in the case of AIR 1956 Andhra 24. In the case before the Supreme Court the case for the prosecution appears to have been that the accused...... were charged under Secs. 120B, 162, 465 and 466 of the Indian Penal Code as adapted by the Vindhya Pradesh Ordinance NO. 48 or 1949.

The validity of the convictions and sentences was challenged before the Supreme Court on the Ground that there was an infringement of Arts. 14 and 20 of the Constitution. Their Lordships negatived the challenge on the ground of infringement of Art. 14 and while dealing with the question of infringement of Art. 20(1) of the Constitution pointed out that the Phrase 'law in force' as used in Art. 20 must be understood in its natural sense as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law 'deemed' to have become operative by virtue of the power of legislature to pass retrospective laws.

It is clear from the decision that the facts of the case before the Supreme Court were that although the offence was committed between February 1949 and April 1949 the Ordinance by which the Indian Penal Code as adapted in the United State of Vindhya pradesh was not passed till the 11th September, 1949 about five months after the alleged commission of the offence in question. Their Lordships were considering in the case before them the question whether such 'ex post facto legislation could be said to be law in force within the meaning of the expression used in Art. 20 where in fact there was no such law at the time of the alleged commission of the offence but the law was deemed to have become operative by virtue of the power of the legislature to pass retrospective laws.

The Supreme Court case, therefore, can be distinguished on facts from the cases we are concerned with now. The case before the Andhra High Court which applied the principle laid down by the Supreme Court in the case referred to was somewhat different. That case arose out of certain prosecutions under Ss. 73 and 66 of the Indian Mines Act, 1952 and there the point was raised that the rules and regulations framed under the old Act were no longer in force because of the repeal of that Act and punishment under the provisions of the new Act for violation of the rules made under the old Act was not permissible and their Lordships of the Andhra High Court After referring to S. 24 of the General Clauses Act under which any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act or Regulation Shall So far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law made or issued under the provisions so re-enacted, ultimately hold that the phrase 'law in force' as interpreted by the Supreme Court in : 1954CriLJ1480 , is conclusive against the prosecution of the case before them although their Lordships were not oblivious of the fact that the Supreme Court Case referred to ex post facto legislation and ex post facto legislation only.

In the case before the Andhra High Court as well as in the cases before us there is no question as to 'ex post facto' legislation. When the Mines Act of 1923 was repealed in 1952 and replaced by the Act of 1952 under. S. 24 of the General Clauses Act the rules framed under the repealed Act of 1923 were deemed to be rules under the new. Act of 1952 so as to be perfectly valid and as the prosecution was launched ling thereafter the rules framed under the repealed Act must be held to have been perfectly valid and part of the law in force within the meaning of the expression in Art. 20 of the Constitution. With all respect to their Lordships of the Andhra High court I must say that they appear to have misapplied the dictum of the Supreme Court in : 1954CriLJ1480 .'

In State of Madhya Pradesh v. A. K. Jain, : AIR1958MP162 , the Madhya Pradesh High Court also took the same view. In that case their Lordships of the Madhya Pradesh High Court after dealing with the scope and applicability of Section 24 of the General Clauses Act in so far as the rules and regulations framed under the repealed Act are concerned (in the absence of a saving clause in the new Act) came to the conclusion that the rules and regulations and bye-laws which are kept alive by a legal fiction under section 24 of the General Clauses Act are 'laws in force' within the meaning of Art. 20 of the Constitution and the infringement of those rules and regulations can be dealt with and punished by the Criminal Court in AIR 1956 Andhra 24, their Lordships observed as follows :

'In support of this contention he also relies on a decision of the Supreme Court in : 1954CriLJ1480 , and on a decision of the Andhra High Court reported in In re Lingareddi Venkatareddi, in the Supreme Court case has no relevance to the facts of these case. There, their Lordships of the Supreme Court while interpreting the phrase 'law in force' as used in Art. 20 of the Constitution stated : 'Law in force' referred to therein must be taken to relate not to law 'deemed' to be in force and thus brought into force but the law factually in operation at the time or what may be called the then existing law.

Their Lordships were in that case dealing with ex post facto laws and it is in that context that they said that the 'law in force' must be the law which was factually in operation on the date of the commission of the offence and not the law which by legal fiction is made operative by virtue of the power of the Legislature to pass retrospective laws................In the Andhra case no doubt their Lordships interpreted the phrase 'law in force' as excluding the laws in force by virtue of a legal fiction on the authority of the aforesaid Supreme Court decision.

With all respect to their Lordships of the Andhra High Court we are of opinion that the learned Judges were reading much more in the Supreme Court case than the judgment of that case warranted. The observations cannot be extended to holding that the expression 'law in force' occurring in Art. 20 of the Constitution does not include laws which are in force by virtue of any legal fiction irrespective of the fact that they were not make retrospective laws. We also note that the view taken by the Andhra High court has been dissented from by the Calcutta High Court in : AIR1957Cal483 . We respectfully agree with the Calcutta decision on that point.'

Reference may also be made to a recent decision of the Patna High Court reported in : AIR1958Pat378 , Karam Chand Thapar v. State of Bihar. In that case some mine owners filed a petition under Art. 226 of the Constitution of India Praying for the issue of a writ quashing the criminal the Regulations and Rules under the Mines Act, on the ground that those Rules and Regulations framed under the repealed Act did not survive the old Act and that the contravention of those rules and Regulations cannot be the basis of criminal prosecutions. Repelling the contention his Lordship Ramaswami, C. J. who rendered the judgment in the case observed as follows :

'I hold, therefore, that S. 24 of the General Clauses Act applies to these cases and the Regulations made under the old Act survive the repeal of the old Act by S. 88 of the new Act. In spite of the 'As If' clause contained in S. 31(4) of the old Act, the Regulations are still Regulations and they have not ceased to exist as Regulations though they 'shall have effect as if enacted under this act'. The language of S. 24 of the General Clauses Act clearly shows that it is intended to apply to all Rules and Regulations, whether they are Rules and Regulations simpliciter or whether they are Rules and Regulations which 'shall have effect as if enacted under this Act'.

It is manifest that the Regulations are in factual existence as Regulations, though for many purposes they are treated as if they are enacted in the statute. To put it differently the Regulations have not lost their identity as Regulations and therefore S. 24 of the General Clauses Act by S. 88 of the new Act.'

It is clear from the above discussion that the view taken by the Andhra High court, that because the Rules and Regulations framed under the repealed Act are kept in force by virtue of Section 24 of the General Clauses Act and 'deemed to be made' under the new Act they are not 'law in force' and therefore, no prosecution can be launched against those that violate those Rules and Regulations, is erroneous.

After carefully examining the matter we have no doubt in our minds that the prosecution under Section 74 of the Mines Act of 1952 for contravention of the provisions of 1926 framed under the Indian Mines Act of 1923 launched after the new Act, namely Act 35 of 1952 came into force is perfectly valid. But we have already held that the prosecution has failed to establish that the respondents had infringed or committed breaches of any of the provisions of 1926 and the judgment of acquittal passed by the learned Magistrate in that respect is correct.

(6) In the result, therefore, this appeal fails and is dismissed.

(7) Appeal dimissed.


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