1 IN THE HIGH COURT OF JHARKHAND, RANCHI Cr.M.P. No. 962 of 2006 A.C. Sinha-- -- - - -- -- -- -- ---Petitioner(s) Versus 1. The State of Jharkhand 2. The Factory Inspector, Jamshedpur, Circle-I, Jamshedpur, District East Singhbhum -- --Opposite Parties CORAM : THE HON BLE MR.JUSTICE D.K. SINHA For the Petitioner(s) For the State-Opp. Party : M/s. Rana Pratap Singh & V.P. Singh, Sr. Advocates M/s. A.K. Singh & A.K. Sinha, Advocates : Mr. J. Mahto, A.P.P. ----- Reserved on: 16-11-2009 Pronounced on: 18-01-2010 D.K. Sinha, J. Petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for the quashment of the order impugned dated 7.6.2006 passed in Compliant Case C/2 Case No.13 of 1997 for the alleged offence under Section 92 of the Factories Act, 1948 by which Shri S.K. Choudhary, Judicial Magistrate, 1 st Class, Jamshedpur dismissed the application of the petitioner preferred under Section 245 of the Code of Criminal Procedure for his discharge. Petitioner further requested for the quashment of the entire criminal proceeding in view of the observation made by the Patna High Court in Criminal Misc. No.7208 of 1997(R). 2. Complainant- Factory Inspector opposite party No.2 narrated that M/s. Tata Engineering Locomotive Company Limited (M/s. TELCO Ltd. in short) is registered under Factories Act, 1948 under Section 2M(I). The said factory is run by the electric machines duly operated by the workers which manufactures trucks, bus chassis, casting/forging etc. On 28.3.1997 the complainant- opposite party No.2 was informed on telephone by the Safety Manager of M/s. TELCO Ltd. about an accident that had taken place and pursuant to such information, the complainant immediately rushed there inspected the place, prepared the chart of ladder and electrical pole and also recorded the statements of the witnesses. In the said process, complainant-opposite party No.2 learnt that the painting work of electric pole from the main gate of factory towards the passage of the road were being done on 28.3.1997 with the help of trolley ladder by
2 K. Thakur, Nagendra Bhagat and Ananto. The work was being done under the direction of the contractor Shri Rabinder Singh, who had engaged them for doing the painting work. Complainant- Factory Inspector gathered from the materials on record that the work was started on 27.3.1997 which continued on 28.3.1997 till afternoon. After lunch break, workers resumed their work of painting being down with the help of ladder which was held on the one end by Nagendra Bhagat and on the other end by Ananto, whereas K. Thakur was on the ladder doing the painting work. After some time, Nagendra Bhagat asked K. Thakur to come down as he wanted to move the ladder and while K. Thakur was getting down he was cautioned to get down slowly but in the meantime, one of the ridge of the trolley came out which caused ladder to jerk and in spite of best efforts made by Ananto, K. Thakur fell down on the road from the ladder and sustained injuries. Victim was removed to hospital and from there he was transferred to Kharangajhar Hospital where he died. In view of such occurrence, Factory Inspector opposite party No.2 filed a written complaint under Section 92 of the Factories Act, 1948 against the petitioner and another for alleged violation of Section 7A of the Factories Act, 1948 as also for violation of Rule 62-BH and Rule 55(A) (2) of the Bihar Factories Rules, 1950. Having been prima facie satisfied with the allegation as made in the complaint Mr. Md. Kasim, Judicial Magistrate, 1 st Class, Jamshedpur took cognizance of the offence on 27.6.1997 under Section 92 of the Factories Act, 1948. According to the complainant- Factory Inspector, he had given the name of the accused No.1 S.J. Ghandy and the accused No.2 A.C. Sinha (petitioner herein) as the persons holding the office of Occupier and Manager respectively. 3. Learned Sr. Counsel Mr. Rana Pratap Singh initiated his argument by submitting that it would be evident from the complaint and from the statements of the witnesses that the painting work by using trolley ladder was given effect to by workers including the victim under the instruction and supervision of the contractor Shri Rabinder Singh and the supervisor Nagendra Bhagat but the victim himself had not adopted the safety measures which resulted into accident. After the alleged accident, the matter was immediately informed to the complainant- Factory Inspector, who submitted a report by disclosing violation of certain provisions of Factories Act and he recommended for some safety measures to be adopted and pursuant to such direction M/s. TELCO Ltd. submitted a
3 compliance report to the complainant - Factory Inspector vide its letter No.S2/5/1F/1052 dt.19.8.1997. 4. Advancing his argument, Mr. Singh submitted that the contract work of painting of electrical pole was given to M/s. M.L. Electricals. M/s. TELCO Ltd. while allotting the contract work to M/s. M.L. Electricals had also issued Safety Instruction Certificate to the contractor along with a copy of Safety Rules and Regulations to be observed during contract work. Yet, the victim under supervision of the contractor had not adopted the safety measures and on account of his negligence the accident took place for no fault of others therefore, no person could be made liable for the accident that took place outside the premises of the Company. 5. Learned Sr. Counsel pointed out that petitioner had preferred Cr. Misc. No.6236 of 1997(R) before the Ranchi Bench of Patna High Court for quashment of the impugned order of taking cognizance dated 27.06.1997 which was dismissed as withdrawn on 2.2.1998, however, with the liberty to the petitioner to prefer an application under Section 101 of the Factories Act, before the court-below. Pursuant to such liberty, petitioner preferred a petition under Section 101 of the Factories Act before the court on 16.9.1998 but no order was passed on that petition till filing of the instant petition. Learned Sr. Counsel Mr. Singh further explained that the coaccused S.J. Gandhy, filed an application for quashment of the cognizance order dated 27.6.1997 and the Ranchi Bench of Patna High Court by the order dated 10.11.1999 quashed the impugned order of cognizance dated 27.06.1997 in Cr. Misc. No.7208 of 1997, which was taken in Compliant Case C/2 Case No.13 of 1997, with the observation, Indeed, the jurisdiction vested in this court in the matter of quashing cognizance is to be exercised sparingly only if such exercise advances the cause of justice and prevents abuse of the process of the court. Order of cognizance can be quashed if what has been stated in the first information report or petition of complaint together with materials collected in course of investigation do not constitute the offence alleged even if such allegation and materials in support thereof are taken on their face value. The complaint- Factory Inspector in the present case was told by the Supervisor appointed by the contractor and the co-worker that necessary safety measures were asked by the Management to be adopted by the workers still they neglected to adhere to such instructions. Even the ladder which was taken out by the workers on being declared fit by the Supervisor, was not found with any patent defect therein. Therefore, it is manifest that even if what has been alleged in the petition of complaint read with the statements of the two witnesses annexed therewith is accepted to be correct, no contravention of the provisions of Section 7A of the Act and sub-rule(2) of the Rule 55A of the Bihar Factories Rules is shown to have been committed by the petitioner-occupier of the factory. In other words, on the facts stated no offence u/s 92 of the Act is even prima
4 facie found to be made out. In the circumstances, to permit the petitioner to face trial shall be tantamount to abuse of the process of the court. Therefore, the application is allowed and the impugned order taking cognizance of offence u/s 92 of the Factories Act in C/2 case No.13/97 pending in the court of Md. Quasim, Judicial Magistrate, 1 st Class at Jamshedpur as against the petitioner is quashed. 6. In view of the aforesaid finding, the learned Sr. Counsel Mr. Singh submitted that the cognizance of the offence against S.J. Ghandy, who was admittedly the Occupier of the factory M/s. TELCO Ltd. was quashed. 7. Learned Sr. Counsel further submitted that Section 7A of the Factories Act dealt with the general duty of the Occupier and for that Form No.2 under the Act put burden upon the Occupier to disclose the name of the Manager of the factory. Compliant was based upon the allegation with respect to breach of Rule 7A, Rule 52B and Rule 55(A) of the Factories Act. Petitioner herein preferred a petition under Section 245 of the Code of Criminal Procedure but by that time since he had not appeared, he had filed a petition under Section 205 of the Code of Criminal Procedure which was dismissed on 7.12.2005 against which petitioner preferred Cr. Revision No.214 of 2005 and the learned 2 nd Additional Sessions Judge by the order dated 2.3.2006 allowed the petition and only thereafter his discharge petition under Section 245 of the Code of Criminal Procedure was rejected on 7.06.2006 on erroneous consideration and that the learned Judicial Magistrate lost sight of the fact that no offence under the provisions of Factories Act could be attracted against the petitioner as he had not violated any provision of the Act and if at all any negligent act, commission or omission was done it was done by the victim, who was a casual labourer for which neither the Occupier nor the Manager (petitioner) could be held guilty. Victim even did not come under the definition of worker as enumerated under Section 2(L) of the Factories Act as he was not employed in any manufacturing process or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with the manufacturing process or subject of manufacturing process. In the instant case, the work allotted to the victim by the contractor was painting of pole of street light outside the manufacturing premises under the contract work given to M/s. M.L. Electricals and therefore, the victim was not connected with the manufacturing process or subject of manufacturing process of M/s. TELCO Ltd. so that the provisions of Factories Act could be attracted against the Occupier and the Manager of the factory. Section 7A of the Factories Act relates to general duties of Occupier which speaks,
5 Every occupier shall ensure, so far as is reasonably practicably the health, safety and welfare of all workers while they are at work in the factory including other duties, which relates to health and safety by way of removing of wastes and rugs which may not cause Hazard to life and safety and to create good environment in manufacturing process. Therefore, Section 7A of the Factories Act cannot be said to be violated by the petitioner in the facts and circumstances who was admittedly the manager of M/s. TELCO Ltd. and had performed his duties most diligently. 8. Heard the learned A.P.P. appearing on behalf of the State. 9. Considering the facts and circumstances of the case, I find substance in the argument advanced on behalf of the petitioner by the learned Sr. Counsel Mr. Singh, who categorically discussed and distinguished the liability of the occupier and the contractor. I find that similarly situated co-accused S.J. Ghandy had preferred a petition under Section 482 of the Code of Criminal Procedure for quashment of the cognizance order taken in this case on 27.6.1997. The Ranchi Bench of the Patna High Court by its order dated 10.11.1999 quashed the impugned order of cognizance in Cr. Misc. No.7208 of 1997 taken by the Chief Judicial Magistrate, Jamshedpur in Compliant Case C/2 Case No.13 of 1997. However, it is amazing that when the cognizance of the offence was once quashed by the order of this Court then how the prosecution was allowed to be proceeded against the petitioner co-accused A.C. Sinha for the said cognizance of offence. The settled principle of law is that charge is framed against the accused whereas cognizance is taken of the offence and that when it was held by the Ranchi Bench of Patna High Court that no cognizance of the offence alleged under Section 92 of the Factories Act was maintainable, the criminal prosecution of the petitioner for same set of alleged offence would tantamount to miscarriage of justice, in the backdrop as well that no criminal liability could be fasten upon the management of the factory and it was held in the said decision that the contractor and the co-workers neglected to adhere to the safety instructions which were provided at the time of awarding work orders and no technical defect was found in the ladder so as to cause any accident. The learned A.P.P. failed to convince otherwise against the contention made on behalf of the petitioner. I therefore find and hold that the order passed in Cr. Misc. No.7208 of 1997 by the Ranchi Bench of Patna High Court quashing the cognizance order dated 27.6.1997 in
6 Compliant Case C/2 No.13 of 1997 holds good and is relevant for the petitioner co-accused A.C. Sinha also and he therefore, ought to have been discharged from his criminal liability in the instant case by allowing his petition filed under Section 245 of the Code of Criminal Procedure. 10. For the reasons stated above and relying upon the order of the Ranchi Bench of the Patna High Court referred to hereinbefore, I allow this petition and discharge the petitioner A.C. Sinha from his criminal liability in this case. S.B./FAR (D.K. Sinha, J.)