Madras High Court
R.Vijayakannan vs State Represented By on 19 March, 2024
Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 20.12.2023
Pronounced On : 19.03.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.R.C(MD)Nos.874, 879, 880 and 989 of 2023
and
Crl.M.P(MD)Nos.11631, 11633, 11662, 11664, 11666 &11667 of 2023
and
Crl.M.P.(MD)Nos.12764 and 12765 of 2023
Crl.R.C(MD) No.874 of 2023:
R.Vijayakannan .. Petitioner/Petitioner/ A-1
Vs.
State represented by
The Inspector of Police,
CBCID, South
Tiruchirapalli. .. Respondent/ Respondent/ Complainant
PRAYER: Criminal Revision Petition has been filed under Section 397
r/w 401 of Cr.P.C., to call for records and set aside the order passed in
Crl.M.P.No.984 of 2020 in S.C.No.17 of 2020 dated 30.01.2023 and
discharge the petitioner from all the charges framed in S.C.No.17 of 2020
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Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023
pending on the file of I-Additional District and Sessions Judge (PCR),
Tiruchirapalli.
Crl.R.C(MD) No.879 of 2023:
S.S.Anand .. Petitioner/Petitioner/A-3
Vs.
State represented by,
The Inspector of Police,
CBCID, South
Tiruchirapalli. .. Respondent/ Respondent /Complainant
PRAYER: Criminal Revision Petition has been filed under Section 397
r/w 401 of Cr.P.C., to call for record and set aside the order passed in
Crl.M.P.No.982 of 2020 in S.C.No.17 of 2020 dated 30.01.2023 and
discharge the petitioner from all the charges framed in S.C.No.17 of 2020
pending on the file of the I-Additional District and Sessions Judge
(PCR), Tiruchirapalli.
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Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023
Crl.R.C(MD) No.880 of 2023:
Rajagopal .. Petitioner/Petitioner/ A-4
Vs.
State represented by,
The Inspector of Police,
CBCID, South
Tiruchirapalli. .. Respondent/ Respondent /Complainant
PRAYER: Criminal Revision Petition has been filed under Section 397
r/w 401 of Cr.P.C., to call for records and set aside the order passed in
Crl.M.P.No.983 of 2020 in S.C.No.17 of 2020 dated 30.01.2023 and
discharge the petitioner from all the charges framed in S.C.No.17 of 2020
pending on the file of I-Additional District and Sessions Judge (PCR),
Tiruchirapalli.
Crl.RC(MD)No.989 of 2023:
P.Prakasam .. Petitioner/ Petitioner/ A-2
Vs.
State represented by,
The Inspector of Police,
CBCID, South,
Tiruchirapalli. .. Respondent/ Respondent/ Complainant
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Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023
PRAYER: Criminal Revision Petition has been filed under Section 397
r/w 401 of Cr.P.C., to call for records and set aside the order passed in
Crl.M.P.No.984 of 2020 in S.C.No.17 of 2020 dated 30.01.2023 and
discharge the petitioner from all the charges framed in S.C.No.17 of 2020
pending on the file of I-Additional District and Sessions Judge (PCR),
Tiruchirapalli.
For Petitioner : Mr.K.Raja
in Crl.R.C(MD)No.874/2023
: Mr.D.R.Murugesan
in Crl.R.C(MD)No.879/2023
: Mr.R.Mathiyalagan
in Crl.R.C(MD)No.880/2023
: Mr.K.Raja
for Mr.K.Periya Karuppan
in Crl.R.C(MD)No.989/2023
For Respondent : Mr.T.Senthil Kumar,
Additional Public Prosecutor
in all cases
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Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023
COMMON ORDER
Since these petitions are arising out of the same crime, these petitions are taken up for hearing together and disposed of by way of this common order.
2.The revision petitioners/Accused Nos.1 to 4 in S.C.No.17 of 2020 on the file of the I-Additional District and Sessions Judge (PCR), Tiruchirapalli, filed this petition challenging the order passed in Crl.M.P.Nos.982 to 984 of 2020 in S.C.No.17 of 2020, dated 30.01.2023 and discharge the petitioners from all the charges framed in S.C.No.17 of 2020 pending on the file of I-Additional District and Sessions Judge (PCR), Tiruchirapalli.
3.The petitioners are the Directors and Managers of M/s.Vetrivel Explosive Private Limited having office at No.135, Kennady Nagar, Salem-5. They obtained proper license from the proper authority and running the factory at T.Murungapatti Village, Thuraiyur Taluk, Tiruchirappalli, to manufacture “PETN”. On 01.12.2016 at 7.30 a.m, the ______________ Page No.5 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 in-charge Village Administrative Officer of Murungapatti village heard the loud noise from the “PETN” explosive company and he along with his ministerial staff went to the factory and saw the Unit No.II was scattered into pieces by the heavy explosion and due to the said explosion, 19 workers and labourers died and 16 injured. Their bodies were scattered into pieces. Therefore, he gave a complaint before the Uppiliyapuram Police Station. They registered a case in Crime No.384 of 2016 and the same was transferred to the CBCID, Trichy. The CBCID, Trichy, assigned new Crime No.1 of 2018 and conducted investigation and filed the final report for the offences under Sections 9(b)(1)(b), 9(b)3(c) of the Explosives Act, 1884, Sections 3, 4(b) and 5 of the Explosive of Substances Act, 1908 and 308 of IPC (16 counts), 304(ii) (19 counts) r/w 34 of IPC.
4.The following allegations are made in the final report:
4.1. As per the final report A1-Managing Director ordered A3-
Senior Production Manager of the above factory, in the middle of the year 2016 to increase the production in order to meet out the bulk order ______________ Page No.6 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 received from Indonesia. A3 with knowledge of A2 instructed A4 to increase the production. Due to that instruction 3 PETN units were installed for the production of excess PETN. A1 to A4 acted fully knowing that to increase the production in all 3 PETN Units by starting instantly and non stop operation of the units would generate pressure in the dissolving pot led to an explosion and thereby cause explosion.
4.2. Marginally noted A1-Vijayakannan and A2-Prakasam did not appoint safety officer as per Section 40B r/w 3,4 7 5 of the Factories Act, 1948. A1 to A4 never tool any special precautions against accident by violating the Rule 19(1) of the Explosives Rules, 2008, and they did not maintain the equipments property-violating Rule 37(1) of the Explosives rules, 2008 and proper training was not imparted to the workers / operator-violating of Rule 35 of the Explosive Rules, 2008. A1 knowingly violated the 4th and 8th conditions of the authorized license of the above said factory in No.E/H1/TN/20/810 (E3 1524) issued by the Chief Controller of Explosive. The 4th condition is as follows:
“the licensee and every person employed ______________ Page No.7 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 in or about the factory shall take all due precautions for the prevention of accidents by fire or explosion in the factory and for preventing unauthorized person from having access to the factory or to the explosives therein and shall abstain from any act whatsoever which tends to cause fire or explosion and is not reasonably necessary for the purpose of work in the factory” and the 8th condition is “the licensee, occupier, the safety officer and the qualified and competent persons shall undergo and also organize safety workshops and training programs regularly for safety awareness and for knowledge for their own as well as their sub-ordinates and shall record the same”.
The accused A1 to A4 failed to take due precautions for the prevention of such accidents by fire or explosion in the factory and no record was maintained for imparting training and hence the A1 violated the safety norms.
4.3. A1 to A4 did not adopt the norms in the licence in which minimum of 400 kgs of manufactured explosives of PETN can only be ______________ Page No.8 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 stored in the PETN Unit-II. But 1300 kgs of manufactured PETN explosives were stored in the PETN Unit-II on 30.11.2016/01.02.2016.
As per the above said norms instead of 4 workers 13 more workers were allowed to enter into the PETN Unit-II to replace the manufactured PETN on 01.12.2016 at about 7.30 hrs. 4.4. One of the witness/worker Senthil Kumar was injured while handling Nitric Acid in the same PETN unit-II on 20.01.2013 and another worker Sujith was also injured similarly on 01.08.2016. The aforesaid accidents were neither informed to the local police nor have been recorded in the company's record. The accused A1 to A4 intentionally screened the incidents from the knowledge of jurisdictional police by violating the conditions of licence No.13 and Rule 25 of the Explosive Rules 2008.
4.5. A1 nominated A3&A4 as competent persons under 211 of explosive Rule 20. On this basis Chief Controller of Explosives nominated A3 & A4 as a competent persons for the manufacturing unit of ______________ Page No.9 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 M/s.Vetrivel Explosives (P)Ltd., and they have violated instructions issued by the Chief Controller of Explosives.
4.6. Therefore, in the above said circumstances due to the lapses, negligence, irregularities from the safety point of view and failure to follow safety norms coupled with the violations of conditions laid down in the license issued by the Chief Controller of Explosives on the part of A1 to A4, explosion happened on 01.12.2016 at about 7.30 hrs. at the said factory in Uppliyapuram police station limits in Trichy District. In the said occurrence 19 persons died and 11 persons sustained simple injury and 5 persons sustained grievous injury. Hence, the accused Nos.1 to 4 with common intention have committed the offence punishable under Sections 9(b)(1)(b), 9(b)3(c) of the Explosives Act, 1884, Section 3, 4(b) and 5 of the Explosive of Substances Act, 1908 and 308 IPC (16 counts), 304 Part-II (19 counts) r/w 34 IPC.
5. The said final report was taken on file in Special S.C.No.17 of 2020 on the file of the learned I-Additional District and Sessions ______________ Page No.10 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 Judge(PCR), Trichy. Pending the said case, they filed discharge petition. In the discharge petition, they pleaded that the offence under Sections 304(ii), 308 and 34 of IPC is not made out. The first petitioner the Managing Director and the second petitioner-Director were not engaged in manufacture, possession and distribution of the explosive substances at any point of time and hence Section 3, 4(b) and 5 of the Explosive Substances Act is not applicable. As per the records, one Mr.Rajagopal/A3 has been appointed as a competent person to look into the affairs of the company and he is responsible for the safety and other aspects and also the day to day functioning of the factory. Therefore, the petitioners cannot be fastened with liability. In support of the discharge petition, they filed a detailed written submission running more than 23 pages. The prosecution filed the counter stating that the plea raised by the petitioners has to be decided in the trial. The defence of the petitioners cannot be considered at the time of framing the charges. There are sufficient materials which not only create the strong suspicion to frame the charges but also to the extent of convicting the accused. Therefore, in the said circumstances, the prosecution wants to dismiss ______________ Page No.11 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 the discharge petition. In the counter of the discharge petition, the prosecution categorically stated that the petitioners/accused did not follow the norms mentioned in the licence. As per the licence, they are entitled to store only of 400 kg of manufactured explosive of Penta Erythritol Tetra Nitrate (PETN) in the PETN II Plant. But, according to the prosecution, 1300 kg of manufactured PETN explosive was stored in the premises. To prove the same, they collected enough materials. Apart from that, they also examined the relevant witnesses and their statements also were recorded under Section 164 Cr.P.C. The said accident was never informed to the jurisdictional police. The petitioners possessed excess of PETN explosive in PETN Unit-II and also allowed 15 workers into the plant instead of 4 persons stipulated in the licence condition. Therefore, 19 persons met their death. Hence, there is a clear violation of the Explosive Act and also the commission of offence under the Explosive Substances Act apart from commission of offence under Section 304(ii) and 308 read with 34 IPC. The petitioners were also earlier convicted for the similar lapse. As per the Factories Act, the petitioners A1 & A2 have not appointed safety officer as per Section 4(B) ______________ Page No.12 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 of the Safety Factories Act, 1948 read with 3, 4 and 5 of the Tamil Nadu Factories Safety Officers(work, eligibility & condition of the work) Rules, 2005. They appointed only ineligible persons which resulted in the explosion. Hence, the discharge petition is liable to be dismissed.
6. The learned trial Judge considering the submission of the petitioners and the Public Prosecutor, dismissed the discharge petitions by the impugned order dated 30.01.2023. The learned trial Judge while dismissing the discharge petitions has not made a detailed order on the issues raised by the petitioners and simply passed the impugned order without assigning any reason in a cryptic manner. But the learned trial Judge extracted the written submission of the petitioners and the submission of the learned Additional Public Prosecutor and stated that prima facie case is made out from the available materials and there is sufficient ground for proceedings against the accused and also there is prima facie material available against the accused to proceed the trial. The learned trial Judge also stated that he restricts himself from making observation on the other points raised by the other side at this stage. ______________ Page No.13 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023
7. According to the learned counsel for the petitioners, this is the order passed without assigning any reason upon considering the submission of the petitioners. Therefore, he seeks for setting aside the impugned order.
8. The learned counsel for the respondent submitted that in the final report, it is stated that the Company got order from the Indonesia for substantial quantity and hence, A1 ordered A3 to increase their scale of production in order to meet the bulk order received from the Dana Software, Indonesia. According to that A3 instructed A4 to increase the production and due to that instruction, the unit in question was started to work with the increased number of workers and stored the manufactured PETN explosive more than the allotted quantity. In result, the explosion has happened. Due to that explosion, 19 persons died. The explosion was so devastating to the extent that the body of the said 19 persons were not even able to be identified. In the said circumstances, according to the petitioners' case is concerned, the prosecution did not produce any ______________ Page No.14 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 material to show that they got the order from the Dana Company of Indonesia. Per contra, the learned counsel for the petitioners relied some documents showing that before that date, they already supplied the work order as per the work order entered between the said Company. Therefore, the learned counsel submitted that the first limb of the allegation that the petitioners got the order from the Dana Company has not been proved. To prove the same, no material is produced. Therefore, without material, the Court has no jurisdiction to frame charges and hence, he seeks for the discharge of the accused.
9. The learned counsel for the petitioners further submitted that there was no violation of Section 40B read with 3, 4 & 5 of the Factories Act, 1948. According to the petitioners, charge framed under Section 40B of the Factories Act is not applicable. In any case, it is very clear that the appointment of a safety officer in the present instance has only been recommended to the company by the Industrial Safety and Health Department and it was not done by way of notification. Thus, the same does not amount to a violation of this provision. It is clear that as per the ______________ Page No.15 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 Competent Person's Certificate one of the competent persons namely, A4- Rajagopalan has already been certified to undertake the duty to impart safety education and take care of the safety of the workers and he has been doing so regularly. It is also not shown how this violation could help in framing any of the charges.
10. As per the final report, they did not take steps by doing action by violating Rule 19 (1) of the Explosive Rules, 2008 and they did not maintain the equipments properly. Therefore, there is violation of the Rule 37 (1) of the Explosive Rules 2008. The proper training was also not imparted to the workers, ie., the violation of Rule 35 of the Explosive Rules, 2008. For the said allegation, the report of the Chief Controller dated 29.11.2017 and the report from the Deputy Chief Controller of Explosives were furnished which show no such lapse was noted and hence the allegation against the petitioners that they violated the said Rules does not arise. The learned counsel further submitted that the petitioners are the Directors and Managers of the Company and without arraying the Company as an accused, the array of the petitioners is not ______________ Page No.16 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 maintainable, for which he placed reliance of the judgement of the Hon'ble Supreme Court and stated that without arraying the company as accused, the Directors and Managers cannot be arrayed as accused. The learned counsel further submitted that the prosecution never collected possession of the 1300 kg of the PETN materials and hence the basic allegation of the prosecution itself is doubtful. Hence, without any document, the Court has no jurisdiction to frame the charges against the petitioners.
11. The leaned counsel further submitted that no ingredients of Section 304(ii) IPC are made out against the petitioners. Even as per the allegation, the offence under Section 304(ii) IPC is not made out, for which he relied on the judgement of the Hon'ble Supreme Court reported in 1996 (6) SCC 129 [Keshub Mahindra v. State of M.P., (1996) 6 SCC 129], 2018 SCC OnLine SC 3538 [Nitinchandra Somnath Raval v. State of Gujarat] and Crl.A.No.1389 of 2018 and he seeks indulgence of this Court to discharge the accused. According to the petitioners, it is only a natural accident and hence, there is no intention on the part of the ______________ Page No.17 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 petitioners to do the act of culpable homicide. Therefore, the offence under Section 304(ii) IPC is not made out. According to the learned counsel for the petitioners, this is only an accident and even the ingredients to frame the charges under Section 304(ii) IPC is not made out. Even though the victims are 19 persons in view of the accident, they are only entitled to claim compensation as per law and has no jurisdiction to invoke the criminal prosecution against the petitioners.
12. The learned counsel for the petitioners further submitted that the report of the Deputy Chief Controller of Explosives, dated 29.11.2017 has been filed pending investigation before the respondent police. The same was relied by the learned counsel for the petitioners to prove that the entire allegation in the final report is contrary to the above said report and hence, no offence is made out.
13. The learned Additional Public Prosecutor submitted that the prosecution collected documents to prove the fact that the petitioners are in possession of the 1300 kg PETN explosive, which is beyond the limit ______________ Page No.18 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 of production level of 300 kg. They have no authority to keep such a huge amount of the explosive in the place where it is only authorised to store the manufactured 300 kg PETN explosive. In the said process of the manufacturing, they employed 19 persons, ie., against the allowed limit of 4 persons. According to the prosecution, only 4 persons are allowed inside the unit in the said preparation, but 19 persons were allowed in the said premises. Therefore, the said circumstance itself shows that the petitioners are liable to be prosecuted for the above violations. The said violation caused death of 19 poor labourers, who undertook to work under the Company to earn for their livelihood.
14. The learned Additional Public Prosecutor specifically submitted that the prosecution collected number of documents to prove the above facts. The probative value of the documents can be considered only at the time of the trial. Apart from the documents, number of witnesses were examined and their 164 Cr.P.C statements also were recorded to prove the above fact of storage of 1300 kg PETN explosive. At this stage, it is sufficient to frame the charges. The learned Additional ______________ Page No.19 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 Public Prosecutor further submitted that the learned counsel for the petitioners made a detailed submission as if this Court exercises its jurisdiction of Appeal Against Conviction. The jurisdiction of this Court is very much limited to record a finding whether a prima facie case is made out. The learned trial Judge, in his cryptic order, correctly dismissed the petition without making a detailed discussion and hence, the contention of the learned counsel for the petitioners that the learned trial Judge did not pass a reasoned order is not correct. The learned Additional Public Prosecutor stated that the learned trial Judge in the three lines, clearly disclosed all the reasons to dismiss the petition. It is not necessary to the learned trial Judge to record a the finding on the several pleas taken by the petitioners at this stage. Therefore, the learned trial Judge in brief manner stated that prima facie material is available to frame the charges. Hence, the learned counsel for the petitioners submission that the learned trial Judge passed a cryptic order is not correct. The learned Additional Public Prosecutor further submitted that this Court is a revisional Court and this Court has to see whether any material is available to frame the charges and the learned Additional ______________ Page No.20 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 Public Prosecutor submitted that this Court has power only to assess the material produced by the investigation agency are enough to frame charges against the petitioners. The learned Additional Public Prosecutor submitted that the Company has not been arrayed as an accused is not a circumstance to discharge to these petitioners. The petitioners are in- charge of the Company and according to the learned Additional Public Prosecutor, the Company may be added even at the time of the proceedings under Section 319 Cr.P.C. Even today, the investigation agency has power to add the company by getting the appropriate order from the learned trial Judge. Apart from that, this Court has power to add the accused under the relevant provisions, ie., 319 Cr.P.C, even at the time of the framing of charges or during the course of trial. Therefore, that is not a ground to discharge the petitioners at this stage when the abundant materials are available to frame the charges against the petitioners and to prosecute them for the above offence.
15. The learned Additional Public Prosecutor further submitted that in this case, knowledge to the accused is available to constitute the ______________ Page No.21 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 offence under Section 304(ii) IPC. Therefore, the judgement relied by the learned counsel for the petitioners is not applicable to the present case. Hence, in view of the abundant materials available, the trial Court has power to frame the charges under Section 304(ii) IPC.
16. The learned Additional Public Prosecutor further submitted that the investigation agency collected number of documents to prove their allegation and the same can be considered at the time of the trial. Even the 164 Cr.P.C statement of the number of the witnesses recorded are relevant to frame the charges at this stage. The learned Additional Public Prosecutor further submitted that the materials collected by the investigation agency from the factory itself shows that 11 batches of preparation of the PETN had taken place (each batch contains 120 kg material,ie., 120 x 11=1320 kg). The probative value of the said documents is to be decided only at the time of the trial. Even in t he document, collected from the petitioners, it is clearly stated that there is a manufacture of the quantity of more than 300 kg.
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17. The learned Additional Public Prosecutor further submitted that in view of the above materials collected by the prosecution, this Court has no jurisdiction to record the finding that the offence was not made out and cautioned this Court by relying number of judgements of the Hon'ble Supreme Court that power of the revision Court in the discharge petition is not elevated to the function of this Court sitting on the appreciation of the evidence and documents of the investigating agency as an appellate authority. He, further submitted that not impleading of the Company is not material at this stage. Even the investigating officer has power to add the company. Even otherwise the Company may be added as accused under Section 319 Cr.P.C. He relied the following judgment of this Court after distinguishing the judgements relied by the learned counsel for the petitioners.
18. This Court has considered the rival submissions made by the both side and the precedents relied upon by them. ______________ Page No.23 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023
19.In spite of the limited scope, the learned counsel for the petitioners made a detailed submission as if he challenged the conviction passed against them. The Honourable Supreme Court repeatedly held that at the stage of the discharge petition, the duty of the Court is to see whether there is a sufficient material to frame the charge is available on record. In this aspect, it is well settled principle that the defence's documents as well as the defence's submission need not be considered acting as a Appellate Court. In spite of that the learned counsel for the petitioners repeatedly made the detailed submission and also requested this Court to address the issue in detail. Apart from accusing, that the learned trial judge has not passed detailed reasoned order, the learned counsel for the petitioners submitted that there is infirmity in the trial Court 's order.
20.According to the learned counsel for the petitioner, the learned trial judge has not passed detailed order considering all the submissions. Hence, the learned trial judge erred in passing a brief order. To appreciate the same, this Court perused the impugned order. The learned trial judge ______________ Page No.24 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 considering the limited scope of the discharge petitions whether the offences are made out or not and sufficient material is available to frame the charges against the petitioners passed the said order. The learned trial judge correctly passed the cryptic order that sufficient material is available to frame the charges. To record a finding, whether there is sufficient material is available or not, it is not necessary to make discussion of the submission of the petitioners in each aspect. Hence, this Court finds no merit in the submission of the learned counsel for the petitioners that the impugned order was not passed on merit. The learned trial judge considering all the points and passed the order that there was sufficient material available to frame charges. The learned trial judge also considered that the passing of the order on merit also would affect the trial. Hence, this Court is not in a position to accept the argument of the learned counsel for the petitioners that a detailed order has not been passed to conclude that the offences under Sections 304(ii) and 308 r/w 34 of IPC are made out or not.
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21.According to the learned counsel for the petitioners, the investigating agency without proving the ingredients to constitute the offence filed the final report for the offences under Sections 9(b)(1)(b), 9(b) 3(c) of the Explosives Act, 1884, Section 3, 4(b) and 5 of the Explosive of Substances Act, 1908 and 308IPC (16 counts), 304(ii) (19 counts) r/w 34 of IPC. According to the learned counsel for the petitioners, as per the document produced by them, there was no negligence on their part and also they properly followed the procedure to safeguard the running of the factory. To that effect, he produced number of documents, to show that inspection was conducted prior to the accident. Where it is stated that they have properly followed the procedure. This Court is unable to accept the submission of the learned counsel for the petitioners on the basis of some documents and communications from the explosive controller. The said document is not proximate to the accident. Further, it is the allegation of the prosecution possession of huge quantities of the PETN that is around 1300 kgs is more than the allowed quantities of manufactured PETN which is 400 kgs. Further, in this case, 19 persons died and 11 persons sustained ______________ Page No.26 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 simple injury and 5 persons sustained grievous injury and as per the norms, only 4 persons are to be allowed. Hence, there is apparent violation of the provisions of the Explosive Substances Act and the licence conditions. According to the counsel, it is an accident and hence, filing the final report under Section 304(ii) is not maintainable. Whether the accident happened without knowledge or with intentional knowledge of the petitioners is to be considered only at the time of trial, after recording the evidence. Whether the offence under Section 304(ii) is made out or not is a matter for trial. The Honourable Supreme Court in the case of Sushil Ansal and Ors. vs. State Through CBI and Ors. reported in 2014 6 SCC 173, has held as follows:
198.1.Each case must be decided on its own facts to determine whether such knowledge did in fact precede the rash/negligent act. 198.2.What converts a case apparently falling under Section 304-A into one under Section 304 Part II IPC is the knowledge that the act is likely to cause death.
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22.From the above, judgment it can be seen that the knowledge can be proved against the petitioners, only at the time of trial. There is sufficient material to frame charges against the petitioners.
23.Further, The petitioners have not taken any precautionary steps to permit the employees and also for excess possession of PETN, which is beyond the permissible which is a strong circumstance and the said ingredients also shown the knowledge of the petitioners, that explosion may happen. Hence, this Court has not accepted the argument of the petitioners at this stage. It is open to the learned trial judge to consider the evidence adduced by the prosecution to find out whether the offence under Section 304(ii) is made out or not as per law.
As per the prosecution, the petitioners committed offence under Sections 9(b)(1)(b) and 9(b)3(c) of the Explosives Act, 1884. According to the prosecution, due to lapses, negligence, irregularities and failure to follow the safety norms, explosion took place on 01.12.2016 at 07.30 ______________ Page No.28 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 hours. Due to the incident, 19 persons died, 11 persons sustained simple injury and 5 persons sustained grievous injury. In the said circumstances, whether there is intentional violation is to be seen on the basis of the evidence before the court below during the course of trial. At this stage, there is material against the petitioners to frame the charges under Sections 9(b)(1)(b), 9(b)3(c) of the Explosives Act, 1884. In the said circumstances, this Court is not in position to accept the argument of the learned counsel for the petitioners.
25.Sections 3, 4(b) and 5 of the Explosive of Substances Act, 1908:
In this case, as rightly pointed out by the learned Additional Public Prosecutor the possession of the huge quantity of the PETN is more than the permitted limit. In the said circumstance, allowing the persons more than the permitted numbers is a strong circumstance to constitute the offence under the above Sections. Hence, the dispute relating to the number of persons in the premises of the unit is matter to be decided during the course of the trial. Hence, at this stage, as rightly pointed out ______________ Page No.29 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 by the learned Additional Public Prosecutor, this Court has no jurisdiction to appreciate the various facts as pleaded by the learned counsel for the petitioners.
25.1.The learned Additional Public Prosecutor further submitted that there is a violation of the Explosives Rules, 2008 and the petitioners have not taken any special precaution to avoid the accident, as per the Rule 19(1) of the Explosives Rules, 2008. Further, they have not maintained the equipments as per the Rule 37(1) of the Explosives Rules, 2008 and they have also not properly trained the workers, as per the Rule 35 of the Explosives Rules, 2008. Further, there was total violation of the various conditions of the licence.
26.Section 308 of IPC From the materials, it is clear that more than 19 persons died. Whether, they did with the knowledge or intention is to be considered at the time of trial. To frame the charges under Section 308 of IPC, it is sufficient at this stage that not following the procedure stated in the ______________ Page No.30 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 Explosive Rules 2008, violation of the condition imposed in the licence to run the industries, all prima facie show that there is a knowledge on the part of the petitioners that the accident might cause threat to the life of the workers. Hence, whether, the material is sufficient to constitute the offence is to be considered at the time of the trial.
27.It is well settled principle that the material to sustain conviction is different from the framing of the charges. The Hon'ble Supreme Court in the following cases has laid the principle that while dealing the discharge petition, this Court has no jurisdiction to look into the documents and conduct a mini trial either as a trial Court or as a appellate Court against the conviction to deal the discharge petition:
1996 4 SCC 659, 2000 6 SCC 338, 2012 9 SCC 460, 2014 11 SCC 709 2023 SCC Online SC 1294, ______________ Page No.31 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023
28.By applying the above principle, this Court is inclined to hold that the petitioners fail to make out the case for discharge. In this said circumstances,this Court finds no merit in the all cases.
29. In the result, these Criminal Revision Petitions are dismissed. Consequently, connected miscellaneous petitions are closed.
19.03.2024 NCC : Yes/No Index : Yes/No Internet: Yes/No PJL/vsg ______________ Page No.32 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 To
1.The I-Additional District and Sessions Judge(PCR), Tiruchirapalli.
2.The Inspector of Police, CBCID, South Tiruchirapalli.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, Criminal Section(Records), Madurai Bench of Madras High Court, Madurai.
______________ Page No.33 of 34 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD).Nos.874, 879, 880 and 989 of 2023 K.K.RAMAKRISHNAN, J.
PJL/vsg Crl.R.C(MD)Nos.874, 879,880 &989 of 2023 19.03.2024 ______________ Page No.34 of 34 https://www.mhc.tn.gov.in/judis