Orissa High Court
Rabindra Nath Parida vs State Of Odisha on 6 April, 2021
Author: S.Pujahari
Bench: S.Pujahari
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO.3543 OF 2019
1. Rabindra Nath Parida.
2. Bulu Swain.
.... Petitioners
-Versus-
State of Odisha.
....Opp.party
CORAM: HON'BLE SHRI JUSTICE S.PUJAHARI
ORDER
05. 06.04.2021 This matter is taken up by Video Conferencing mode.
2. Heard the learned counsel for the petitioners and the learned counsel for the State.
3. This application under Section 482 of Cr.P.C. has been filed by the petitioners, who are the Shift- in-charge in Falcon Marine Exports Pvt. Ltd., with a prayer to quash the F.I.R. dated 14.11.2019 and the consequent proceeding, i.e., C.T. Case No.1293 of 2019, pending before the learned J.M.F.C.(R), Balasore.
4. Falcon Marine Exports Pvt. Limited (herein- after referred to as "the Company") is registered 2 under the Companies Act, 1956 having its head office at Bhubaneswar, and processing plant at Manakahani under Khantapada Police Station in the district of Balasore. The Company is engaged in the business of procuring, processing, packaging, selling and exporting marine products. The Company usually procures raw fishes and processes the same before sale of the same in the market for human consumption. On 13.11.2019 at about 7.30 p.m. there occurred an incident inside the processing plant of the Company in which some of the workers engaged in the plant, more specifically in Room No.2, felt irritation and suffocation in breathing and they were immediately shifted to the nearest hospital. Sri Krishna Pingua, Sub-Inspector of Police of Khantapada Police Station, while being on evening patrolling, on receiving information, went to the spot, and on making necessary enquiry, lodged a written report before the Inspector-in-charge of Khantapada Police Station, basing upon which P.S. Case No.358 of 2019 was registered for the offences under 3 Sections 308, 324, 284, 326, 294, 506/35 of I.P.C. and Section 14 of the Child Labour (Prohibition and Regulation) Act, 1986 against the General Manager of the Company and other officers including the present petitioners who at the relevant time were working as Shift-in-charge of the Company. In course of argument, it was further brought to the notice of this Court that for the selfsame incident there has also been registered a case bearing 2(C) C.C. No.5 of 2020 against the Occupier and Factory Manager of the Company, under Section 92 of the Factories Act for the alleged violation of Rule-62-D under Section 41 of the Factories Act, on the basis of a complaint filed by the Assistant Director of Factories & Boilers, Balasore. Relying on a decision of this Court in the case of Sri Jaiprakash Pandey and others vrs. State of Orissa, reported in (2008) 41 OCR 550, he submits that for the selfsame incident there cannot be two prosecutions, one under the Factories Act and the other under I.P.C. 4
5. It is the submission of the learned counsel for the petitioners that even if the allegations made in the F.I.R. are taken at their face value and accepted in their entirety, no offence much less the offences for which the case has been registered by police, being prima-facie made out, continuance of the proceeding before the Court below would amount to sheer abuse of the process of the Court. Taking me through the contents of the F.I.R., the learned counsel argued that there is nowhere any allegation that there was any voluntary indulgence, or intentional omission or commission on the part of the petitioners or the accused persons resulting in the incident. In support of his contention, the learned counsel for the petitioners placed reliance on a decision of the Apex Court in the case of State of Haryana and others vrs. Ch. Bhajan Lal and others, reported in 1992 Supp (1) SCC 335.
6. Per contra, the learned counsel for the State submits that the case being at nascent stage, and there being no dispute on record that a large number 5 of workers of the plant got affected due to chemical reaction leading to hospitalization, it is not a fit case calling for interference by this Court under Section 482 of Cr.P.C.
7. To reiterate, the F.I.R. has been registered under Sections 308, 324, 326, 294, 284 and 506/35 of IPC and Section 14 of the Child Labour (Prohibition and Regulation) Act, 1986. In so far as the allegation of engagement of Child Labour is concerned, it is submitted that as per the Aadhar Card of the girl worker who was said to be child, her age was recorded as 18 years. Admittedly, nearly 100 workers being affected by the incident had been shifted to hospital. But, there is nothing to show that there was leakage of any poisonous gas in the plant leaving any fatal impact. In the context, a reference may be made to the complaint lodged by the Assistant Director of Factories & Boilers. He has averred, inter-alia, as follows:-
"xxxxxx After telephonic information from the management about the incident I rushed to the site started investigation along with the local administrative authority. At about 03.11 A.M. Dt.14.11.2019, Dy. Director of Factories & 6 Boilers, Safety, Odisha and Dy. Director of Factories & Boilers, Jajpur Road Division reached to the spot and joined me for further investigation at the site, accompanied with technical experts from M/s. TATA Steel Ltd., Kalinganagar, Jajpur, M/s. Birla Tyre, balasore, M/s. Emami Paper Mills Pvt. Ltd., Balasore in presence of IIC, Khantapada. During interacted with the witnesses, examined and assessed the gas concentration with help of gas detector. The affected workers were examined in random in the hospital. It was confirmed by the specialist doctors from SCB Medical; College, Cuttack that the victims are sable and out of danger. From the circumstantial evidence and statement of witness it was confirmed that, the floor of Pre- processing hall remain always in wet condition as part of process requirement. When the workers sprinkled dry bleaching powder on wet floor, chlorine gas was generated with trace of chloroform as a consequence of chemical reaction. Since the hall was a closed chamber with no ventilation, the effect of chlorine & chloroform was instantly felt by the workers with irritation in eye, nose, throat & head reeling etc. It was also confirm that, the refrigeration system of the plant was in operation at that time of visit with ammonia circulation intact indicating no leakage in the ammonia handling system.
The above accident was happened due to unsafe method of work i.e. management has been allowed to work at that section without safe operating practice (SMP)."
7. It is also pertinent to extract here below the recital of the F.I.R.;
"xxxxxx I personally enquired into the cause of incident from the workers and staff of Falcon Marine Exports Pvt. Ltd., Manakahani and it was ascertained from them that yesterday i.e. on dt.13.11.2019 evening at about 07.30 PM when around 200 workers were busy with their works inside the processing unit at that time they felt irritation and suffocation in breathing and some of them became unconscious at the 7 spot. Some of the workers stated that in the said evening at about 05.30 PM as per the direction of Praveek Pillai-General Manager, Bulu Swain - Shift In Charge of Receiving unit and Rabindra Nath Parida-Shift In Charge processing unit, excess bleaching powder was spread over the floor of inner side of the receiving unit as well as processing unit in order to get rid of maggots germinated in those units due to want of proper maintenance of hygienic condition in the processing unit. After use of excessive bleaching powder inside the closed, compact Air Conditioned chamber of the processing unit, there was a chemical reaction which emitted poisonous gas inside the processing units and it's inhalation by the workers present inside the processing unit caused irritation in their eyes, nose and became unconscious after inhaling the poisonous gas. Some of the workers and staff disclosed that due to leakage of noxious Gas from the cooling unit this incident had occurred after inhalation by the workers. They alleged that though they have complained before Jayadev K.S. - Production Manager, Ramakanta Mahapatra - Safety Officer, Rakesh Dhal - Supervisor PPH and even to Nedihes Prakash- HR Manager who were very much present inside the plant to take immediate action in respect of the incident that took place in the plant but they did not respond to their request rather they abused and intimidated the workers. The workers also alleged that due to poor maintenance of the hygienic condition in the Plant and without adhering to the safety norms, the Company Authorities were compelling them to work in a hazardous environment. Xxxxxxxxx It is nothing, but the sheer negligence conduct on the part of the officers and management of Falcon Marine Exports Pvt. Ltd., Manakahani. xxxxxxxx"
8. It is thus the own version of the prosecution as spelt out unequivocally and specifically by the informant - police officer in his F.I.R. and the 8 complainant-officer vide his complaint filed under the Factories Act that the incident was an outcome of negligence or non-adherence to safe operating practice. It is also specifically stated by the Assistant Director of Factories in his complaint that there was no leakage in ammonia handling system, and that the suffocation syndrome was attributed to use of dry bleaching powder on wet floor in the closed chamber with no ventilation.
9. Voluntary overt act or intentional indulgence, as the case may be, is the essential ingredient of the offences under Sections 324, 326, 308 and 506 of IPC. So far as the offence under Section 284 of IPC is concerned, there is nothing to show that any rash or negligent act was done with any poisonous substance. Be that as it may, there has already been registered a complaint case under Section 92 of the Factories Act vide 2(C) C.C. No.5 of 2020 for the selfsame incident. In the case of Sri Jaiprakash Pandey (supra), it has been held that there cannot be two prosecutions, one under Section 92 of the 9 Factories Act and the other under Section 304-A and other Sections of IPC. Referring to a judgment of Jharkhand High Court in the case of Ashwini Kumar Singh and another vrs. State of Jharkhand, reported in 2007 ILR 866, the single Bench of this Court in the case of Sri Jaiprakash Pandey (supra) held as follows:-
"xxxxxxxx Whenever, there is parallel provision in a general statute and special statute, the provision of the special statute will override the general statute. Keeping this in mind, the Jharkhand High Court in Ashwini Kumar Singh (supra) ruled that a police case under Sections 287, 288, 304-A and 338, I.P.C. is not maintainable, when for the selfsame incident a case under Section 92 of the Factories Act is pending. I am in respectful agreement with the view expressed in that case that for the self same incident there cannot be two prosecution. Since the entire allegation is covered in Criminal Case No.1392 of 2008, there is no scope for continuance of proceeding of G.R. Case No.274 of 2008 against the petitioners. Therefore, the proceeding of G.R. Case No.274 of 2008 pending in the Court of learned S.D.J.M., Jharsuguda is quashed. The other case under Section 92 of the Factories Act against the petitioners will never continue."
10. Keeping in view the principle settled as above and also for the discussion made hereinbefore, this Court finds merit in the present application, hence 10 F.I.R. in Khantapada P.S. Case No.358 of 2019 and the consequential prosecution registered vide C.T. Case No.1293 of 2019 before the Court below pursuant to the same, is found to be neither proper nor legal.
11. In the result, this CRLMC is allowed. The aforesaid F.I.R. and the consequential proceeding in C.T. Case No.1293 of 2019 are quashed. The trial court shall do well to comply with this order on production of the certified copy of this order.
As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed, vide Court's Notice No.4587, dated 25th March, 2020.
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PKS/ S.Pujahari, J.
MRS
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