DEPUTY CHIEF INSPECTOR Vs. TARA PRASAD BUXI

JUDGEMENT

(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: