Madhya Pradesh High Court
Vijay Parekh vs The State Of Madhya Pradesh on 11 May, 2020
Equivalent citations: AIRONLINE 2020 MP 1452
Author: Vivek Rusia
Bench: S.C.Sharma, Vivek Rusia
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HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
MISCELLANEOUS CRIMINAL CASE NO.45912/2018
Vijay Parekh s/o Dulichandra Parekh
Vs.
State of Madhya Pradesh
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Coram:
Hon'ble Shri Justice S.C.Sharma, Judge.
Hon'ble Shri Justice Vivek Rusia, Judge
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Shri Vijayesh Atre, Advocate for the appellant.
Shri L.S.Chandiramani, Govt. Advocate for the State.
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Whether approved for reporting:
O R D E R
(Passed on 11.05.2020) Per Vivek Rusia, J:
This petition has been referred to the Division Bench by the Hon'ble Chief Justice for answering the following question of law:
"Whether judgment/order pronounced in respect of a complaint governing provisions of Factories Act and Rules prohibit separate trial in respect of offences under the Indian Penal Code in view of section 300 Cr.P.C -2- and Article 20(2) of the Constitution of India?"
Necessary facts of the case which led to this reference case are as under:
2. On 30.04.2012 an explosion took place in the boiler of the factory belonging to the petitioner viz. Dhanlaxmi Starch Products, situated at 113, 114, 117, Sector-F, Saver Road, Indore. The factory is registered under section 2(m)(i) of the Factories Act, 1948 (hereinafter referred to as 'the Act of 1948') and engaged in the production of starch products. In the said explosion workers Omprakash, Ramesh and Gyanchand sustained burn injuries and during treatment Omprakash succumbed to the burn injuries on 05.05.2012. On account of the death of Omprakash, a criminal case under section 174 Cr.P.C (Marg No.64/12) was registered on 05.05.2012 and a Marg enquiry was conducted. After the enquiry, an FIR (Crime No.606/12) for the offence punishable under sections 304-A & 287 of the IPC was registered against the petitioner on 05.07.2012. On 27.07.2012 after completing the investigation, final report was filed by the Police Station Banganga, Indore before the competent Court for the offence punishable under sections 304-A, 287 & 337 of the I.P.C.
3. Because of the aforesaid accident in the factory, a complaint case was also registered by the Factory Inspector for the offences punishable under section 92 of the Act of 1948 and after investigation Challan was filed before the Chief Judicial Magistrate, Indore. The matter came up before the Lok Adalat on -3- 15.12.2012. In the Lok Adalat the petitioners admitted the commission of offence, therefore, they were convicted under section 88 of the Act of 1948 read with Rule 108 of the Factories Rules, 1950 and Rules 7, 7A, 72 & 73J of the Madhya Pradesh Factories Rules, 1962 (hereinafter referred to as 'the Rules of 1962') and sentenced them till rising of the Court with fine of Rs.45,000/- each and the case was closed.
4. In the Police case (Crime No.606/12) on 27.07.2012 Challan under section 173 of the Cr.P.C was filed before learned J.M.F.C, Indore in Criminal Case No.24961/2012 for the offence punishable under sections 304-A, 287 & 337 of the I.P.C. Learned J.M.F.C framed the charges against the petitioner and fixed the case for evidence. According to the petitioner, he had already been convicted and sentenced under section 92 of the Act of 1948 as mentioned hereinabove vide order dated 15.12.2012 but due to his ignorance he continued to contest the criminal trial for the same cause under the Indian Penal Code.
5. Petitioner has approached this Court by way of petition (MCRC No.45912/18) under section 482 of the Cr.P.C seeking quashment of the FIR as well as the subsequent criminal proceedings of Criminal Case No.24961/2012 pending before the learned J.M.F.C, Indore on the ground that the Act of 1948 being a special Act overwrites the provisions of Indian Penal Code which is a general law. Once he has been tried and punished under the provisions of the Act of 1948, he could not be tried under the provisions of the Indian Penal Code for the same accident which was occurred in the factory on 30.04.2012 as he is having the -4- protection under Article 20(2) of the Constitution of India which protects a citizen of India against such double jeopardy of prosecution and punishment for the same offence more once. The petitioner has also placed reliance over the provision of section 300 Cr.P.C which provides that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence. No steps were taken by the prosecution for the trial of the offence under the Act of 1948 as well as Indian Penal Code conjointly before the same Court, therefore, after conviction and sentence of the petitioner in a criminal case under the Act of 1948 the proceedings before the learned JMFC in Criminal Case No.24961/12 are not maintainable.
6. On 11.04.2019 when the aforesaid petition came up for argument before the learned Single Bench of this Court, learned counsel appearing on behalf of the petitioner placed reliance over the judgment passed by the co-ordinate Bench of this Court in the case of Neeraj Verma vs. State of M.P passed in MCRC No.3222/15 dated 30.09.2015 in which in similar facts and circumstances this Court has laid down that when the accused was convicted under section 92 of the Act of 1948, the proceedings under the provisions of the IPC could not have been continued in view of the provisions of section 300 of the Cr.P.C and Article 20(2) of the Constitution of India. Although under the principle of stare decis learned Single Bench is bound by the judgment passed by the earlier Single Bench of the same High Court, however, -5- under compelling circumstances learned Single Judge chose to differ the view taken in the case of Neeraj Verma (supra).
Learned Single Judge has held that the accused Vijay Parekh was convicted under section 88 of the Act of 1948 read with Rule 7 of the Rules of 1962, 73J, 7A & 72 of the Act of 1948 read with section 92 for the acts and omissions viz, (i) not sending the information of accident to the Factor Inspector (ii) running the factory without obtaining appropriate license (iii) not keeping the attendance register of labourers (iv) not providing adequate training to the labourers from firce & (v) not adopting safety mechanisms in the factory. The aforesaid acts and omissions are absolutely different from the specific wording of section 304-A of the IPC which specifies "causing a death by doing any rash or negligent act not amounting to culpable homicide." The special Act i.e. the Act of 1948 does not encompass the offence committed due to rash and negligent act. The provisions of section 300 Cr.P.C are applicable when the Presiding Officer was in a position to frame charge under the provisions of the I.P.C along with the provisions of the Act of 1948 but no documents pertaining to the offence under the I.P.C were available with him at that point of time, therefore, neither the provisions of section 300 Cr.P.C nor the principle of double jeopardy could not be applicable in the case, hence disagreeing with the view taken by the co-ordinate Bench in the case of Neeraj Verma (supra) requested the Hon'ble Chief Justice to constitute a larger Bench on administrative side to answer the question of law as mentioned hereinabove.
-6-7. Shri Atre, learned counsel for the petitioner submitted that admittedly for the alleged incident took place in the factory belonging to the petitioner on 30.04.2012, the Factory Inspector had filed a complaint under the Act of 1948 against the petitioner alleging the commission of offence under the Act of 1948 and the Rules of 1962 before the learned ACJM. Apart from that, for the same incident an FIR was also registered at Police Station, Banganga against the petitioner for the offence punishable under section 304-A & 287 of the IPC. Hence, the issue arises for consideration is whether the petitioner can be prosecuted and punished twice for the same incident and commission of offence in violation of Article 20 (2) of the Constitution of India as well as against the provision of section 300 of the Cr.P.C. He further submitted that in the case of Neeraj Verma the co-ordinate Bench had followed the view taken by the High Court of Jharkhand in the case of Ashwini Kumar Singh and another vs. State of Jharkhand reported in 2007 (2) JCR 334 and rightly came to the conclusion that the workers suffered the death while discharging their obligation under the terms of the employment for which the factory management or the occupier was convicted under section 92 of the Act of 1948, therefore, the proceeding under the I.P.C for the offences punishable under sections 304-A, 287 & 337 of the IPC could not be continued. There are certain occasions where the worker suffers such bodily injury or death when he was performing the act which was not part of his obligation under the employment. The provisions of section 304-A of the IPC may apply otherwise and the prosecution may be launched under the provisions of the -7- Act of 1948 and in such a situation two cases should be tried together by the same Court under the provision of section 210 of the Cr.P.C. In the present case the worker died while performing his duties as a blast took place in the boiler of the factory, therefore, the petitioner has been prosecuted and convicted under the Act of 1948 and even if the FIR was registered it ought to have been tried by the same Judge hearing the case under the Act of 1948 under section 210 of the Cr.P.C. In similar facts and circumstances another co-ordinate Bench of this Court in the case of Sunil Kurian Mathew vs. State of M.P -MCRC No.1553/2014 decided on 19.03.2019 has quashed the trial in respect of the case under the I.P.C. Shri Atre has placed reliance over the judgment passed by the Apex Court in the case of Kolla Veera Raghav Rao vs. Gorantla Venkateshwara Rao and another reported in (2011) 2 SCC 703 in which the Apex Court has held that section 300 (1) of the Cr.P.C is wider than Article 20(2) of the Constitution of India and quashed the prosecution under section 420 of the I.P.C because the accused had been convicted under section 138 of the Negotiable Instruments Act. In support of his contentions he has also placed reliance over the judgments passed by the Apex Court in the case of Maru Ram vs. Union of India and others, (1981) 1 SCC 107; S N Hussain vs. State of A.P, 1972 3 SCC 18; judgment of the Jharkhand High Court in the case of Ashwini Kumar Singh (supra); Ejaj Ahmad vs. State of Jharkhand in Cr.M.P No.911/2007; judgment of the Karnataka High Court in the case of Sri Sridhar Punachithaya & others vs. State of Karnataka & another in Criminal Petition -8- No.2408/2014; judgment of Allahabad High Court in the case of Y.P Mehrotra & others vs. State of U.P & another reported in II (1988) ACC 45 and judgment of the Chattisgarh High Court in the case of Firoz Alam vs. State of Chhatiisgarh dated 28.02.2009.
8. Shri Atre, learned counsel further submitted that learned Single Judge while differing the view taken by the co-ordinate Bench in the case of Neeraj Verma (supra) had not considered the scope of section 210 of the Cr.P.C which provides that during the course of enquiry or trial if it comes to the knowledge of the Magistrate that an investigation by the Police is in progress in relation to the offence which is subject matter of the enquiry or trial held by him, he shall stay the proceeding and call for the report, and if the report is made available, the Magistrate shall enquire or try together the complaint case and the case arising out of the Police report as if both the cases were instituted on the Police report. Since the aforesaid procedure has not taken place in the present case and the petitioner has been convicted under the provisions of the Act of 1948 and the Rules of 1962 by the competent Court, therefore, as per the provisions of section 300 of the Cr.P.C the petitioner is not liable to be tried again for the same offence nor on the same facts for any other offence as the petitioner is having the protection under Article 20(2) of the Constitution of India. He further argued that although there was no prohibition under the Act of 1948 for prosecution under the I.P.C but by virtue of prohibition under section 300 Cr.P.C and Article 20(2) of the Constituion of India, the present trial for the offence -9- punishable under the I,P.C could not be proceeded and liable to the quashed.
9. Per contra, Shri Chandiramani, learned counsel appearing for the respondent rebutted the above arguments by submitting that the Factory Inspector had filed a complaint before the Magistrate against the petitioner and the case was put up before the Lok Adalat on 15.12.2012 but by that time the FIR had already been registered against the petitioner on 05.07.2012. The Police Banganga had filed the final report on 27.07.2012 against the petitioner and the another the charges under sections 304-A, 287 & 337 I.P.C were also framed against them, therefore, it was the duty of the petitioner to inform the learned Magistrate about the lodging of FIR, filing of Challan and framing of charge against him. However, before the learned A.C.J.M, he admitted the charges under the provisions of the Act of 1948, deposited the fine amount on 15.12.2012 and enjoying freedom. Under the Act of 1948 as well as in the Police case the prosecution agencies are different, hence the prosecution agency under the Act of 1948 was not aware about the registration of FIR in the matter but the petitioner being an accused in both the proceedings was aware about it and he ought to have informed the Court in order to take the benefit of section 210 of the Cr.P.C. He further argued that the provisions of the Act of 1948 as well as the I.P.C in two separate criminal cases have different ingredients and there is no specific bar under the Act of 1948 and the Rules of 1962 for registration of the FIR under various sections punishable under the IPC, hence the prosecution under the I.P.C is not hit by the concept of bar of double jeopardy.
-10-In support of his contention he has placed reliance over the latest judgment passed by the Apex Court in the case of State of Arunachal Pradesh vs. Ramchandra Ravidas reported in (2019) 10 SCC 75 in which the Apex Court has held that the Motor Vehicles Act, 1988 is a complete Code in itself, in so far as the motor vehicles are concerned, but there is no bar under the Motor Vehicles Act or otherwise to try and prosecute the offences under the I.P.C for an offence relating to the motor vehicle accident. He further submitted that the Apex Court in another judgment in the case of Guru Basavaraj Alias Benne Settappa vs. State of Karnataka, (2012) 8 SCC 734 has shown concern on imposition of adequate sentence in respect of commission of offence in the case of motor accident cases and held that there has to be a proportion between the crime and the punishment. In the present case the petitioner has admitted the commission of offence under the provisions of the Act of 1948 and the learned Magistrate has convicted and sentenced him with fine but the said punishment is not sufficient in the present case as a blast occurred in the factory in which two workers got burn injuries and one succumbed to his burn injuries, hence the petitioner is liable to be prosecuted under the provisions of the I.P.C as well as Act of 1948 for imposition of appropriate punishment as the said offence is punishable with jail sentence or fine or both. The petitioner took advantage of the fact that the Magistrate was not aware about the registration of FIR against the petitioner and got the matter closed by admitting the guilt with payment of fine. He cannot be permitted to play fraud with the statute and enjoy the freedom after commission of serious -11- crime, therefore, the learned Single Judge has not committed any error while recording his dissent and referring the matter to the larger Bench. In the Act of 1948 there is no bar for prosecution under the I.P.C. Under the Act of 1948 he has been punished for the violation of provisions of the Act of 1948 and the Rules of 1962 but for the commission of offence under the I,P.C he is liable to be prosecuted which does not amount to double jeopardy or violation of protection guaranteed under Article 20(2) of the Constitution of India.
10. We have heard learned counsel for the parties at length and perused the record as well as case laws cited by the parties.
11. We have carefully examined the provisions of the Act of 1948, Cr.P.C, I.P.C and especially Article 20 of the Constitution of India. The important dates of this case are as under:
Sr. Date Particulars
No.
1 30.04.2012 Fire occurred in the factory
premises of M/s Dhanlaxmi Starch
owned by the petitioner
2. 05.05.2012 Third worker Mr.Omprakash
succumbed to the injuries
3 05.05.2012 Marg was registered by the Police
Station Banganga
4 06.05.2012 Postmortem was done and report
was prepared
5 June 2012 Factory Inspector filed the
complaint with the Additional
Chief Judicial Magistrate
6 05.07.2012 FIR was registered by the Police
Thana Banganga, Indore
7 27.07.2012 Final Report/Charge Sheet was
filed by the Police before Judicial
Magistrate First Class, Indore
8 13.09.2012 Police Complaint was Registered
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(as per order sheet of the Court)
9 15.12.2012 Learned Additional Chief Judicial
Magistrate, Indore convicted the
accused in Lok Adalat in criminal
case No.14021 of 2012
10 12.03.2018 Police case was listed for defence
evidence by the learned Magistrate
11 12.11.2018 Present Criminal Case No.45912
was filed for quashing the criminal
complaint filed by the Police
12. For the accident occurred in the factory on 30.04.2012 the Factory Inspector had filed a complaint before the learned A.C.J.M in the month of June, 2012 and the Police Station, Bangang, Indore also registered an FIR under the provisions of the I.P.C on 05.07.2012 and thereafter filed a charge sheet on 27.07.2012. The case registered under the Act of 1948 was taken up by the Lok Adalat on 15.12.2012. Section 210 of the Cr.P.C provides the procedure to be followed when there is a complaint case and the Police investigation in respect of the same offence. As per section 210 (1) of the Cr.P.C when it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject- matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.
(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject- matter -13- of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.
13. Since the prosecution agencies in the Act of 1948 and the Cr.P.C are different, therefore, it was not doable for the Magistrate to know about the registration of the FIR by the Police. Since the petitioner was common in both the prosecution, therefore, it was the duty of the petitioner to inform the learned Magistrate about the registration of FIR against him because under sub-section (2) of section 210 Cr.P.C, it was mandatory for the Magistrate to inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report, therefore, the petitioner has suppressed the fact regarding registration of FIR against him before the Magistrate and managed to obtain a lesser punishment by way of fine and now he is trying to take the advantage of section 300 of the Cr.P.C. 14 It is correct that under section 300 of the Cr.P.C a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be -14- tried again for the same offence nor on the same facts for any other offence. Section 300 Cr.P.C is reproduced below:
300. Person once convicted or acquitted not to be tried for same offence.
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub- section (1) of section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 , (10 of 1897 ) or of section 188 of this Code.
15. Under section 26 of the General Clauses Act, 1897, where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be -15- liable to be punished twice for the same offence, which is reproduced below:
26. Provision as to offences punishable under two or more enactments--Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
16. Article 20 (2) of the Constitution of India also gives protection to the citizen of India for not being prosecuted for the same offence for more than once which is reproduced below:
20. Protection in respect of conviction for offences.
(1) xxx xxx xxx (2) No person shall be prosecuted and punished for the same offence more than once.
17. The word "offence" is defined in section 2(n) of the Cr.P.C which means any act or omission made punishable by any law for the time being in force. Section 92 of the Act of 1948 provides a penalty for the offence and according to which if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall be guilty of an offence and punishable with imprisonment for a term which may extend to two years or with fine which may extend to one lakh rupees or with both. As per the proviso to section 92 where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than twenty five thousand rupees in the case of an -16- accident causing death, and five thousand rupees in the case of an accident causing serious bodily injury.
18. It is clear from the aforesaid sections that under the Act of 1948 the offence means a contravention of any provisions of this Act and the Rules made thereunder by the occupier and the manager of the factory. Section 88 of the Act of 1948 provides that where in the factory an accident occurs which causes death or any bodily injury the manager of the factory shall send a notice to such authority and after receipt of the notice he shall make an enquiry into the occurrence within one month. Section 90 provides power to the State Govt. to appoint a competent person to enquire into the cases of any accident occurring in the factory. The person holding enquiry shall make a report to the State Govt. stating the cause of accident and any attending circumstances, as he may think fit. As per section 105 of the Act of 1948, no Court shall take cognizance of any offence under the Act except on a complaint by or with the previous sanction in writing of an Inspector and a Judicial Magistrate First Class is competent to try the offence under this Act. Section 106 provides the limitation of 3 months for taking cognizance of an offence punishable under the Act from the date of alleged commission of offence came to the knowledge of the Inspector. Section 88 (3) of the Act of 1948 gives power to the State Govt. to make rules for regulating the procedures and enquires under this section section. Under the Rules there is no such procedure prescribed for conducting the enquiry under section
88. Only the Factory Inspector files a complaint before the Magistrate under section 105 of the Act of 1948 and for that there -17- is a limitation of 3 months from the date of information sent to him and if no information is given under section 88 by the occupier or the manager to the Inspector or in a case where the information was given within 3 months and if he does not file any complaint then there cannot be any prosecution against the occupier or the management even in the case of death or bodily injury occurred due to the accident in the factory. As stated above, under the Act of 1948 there is a general provision of penalty for the offence in any contravention of provisions of the Act of 1948 or the Rules made thereunder, therefore, even in the case of death or bodily injury occurred due to the accident in the factory is nothing but contravention of the provisions of the Act and not a commission of offence by the occupier or the manager as per the definition of offence under section 2(n) of the Cr.P.C.
19. In the case of Monica Bedi vs. State of Andhra Pradesh reported in 2011 Cr.L.J 427, the Apex Court has held that under section 300 of the Cr.P.C and section 26 of the General Clauses Act, the bar to second prosecution and punishment for the same offence would arise only where the ingredients of both the offences are the same and an act or omission can amount to and constitute an offence under I.P.C and at the same time constitute an offence under any other law. The bar would arise only where the ingredients of both the offences are the same.
20. In the case of State of Maharashtra vs. Sayyad Hassan reported in 2018 SCC Online SC 1580, the Apex Court has held that there is no bar to trial or conviction of an offence under two different enactments but the bar is only to punishment of the -18- offender twice for the same offence. The Apex Court has considered the provisions of Food Safety & Standards Act and held that there is no dispute that section 55 of the Food Safety & Standards Act provides for penalty to be imposed for non compliance of requirement of the Act, Rules and Regulations by the Food Safety Officer but the non compliance cannot be subject matter of prosecution under the I.P.C unless expressly or impliedly barred.
21. In view of the above, where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice. There is no bar in prosecuting the petitioner under the provisions of the I.P.C and the question of punishment may come only after the final conclusion of the trial.
22. In the case of M.Natarajan vs. State by Inspector of Police, SPE. CBI, ACB Chennai reported in (2008) 8 SCC 413, the Apex Court has held that merely because there may be some overlapping between the two offences, it does not mean that the accused cannot be tried under the offence covered under the IPC. The Court would proceed to decide the question on the basis of evidence led before it. In the case, the accused was tried under section 132 of the Customs Act and he took a plea that he cannot be tried under the IPC. The Apex Court has held that under section 132 of the Customs Act he has been prosecuted for making a false declaration and false documents, therefore, he cannot be tried simultaneously for the offence committed under the IPC and there is no such bar in it.
-19-23. In the case of State of Madhya Pradesh vs. Rameshwar and others reported in (2009) 11 SCC 424, the issue before the Apex Court was that the M.P Co-Operative Societies Act, 1960 is a complete Code in itself and the remedy of the prosecuting agency lay under the said Act and not under the Cr.P.C. The aforesaid contention was not accepted by the Apex Court and held that there is no bar under the M.P Co-Operative Societies Act, 1960 to take resort to the provisions of the general criminal law particularly when charges under the Prevention of Corruption Act are involved.
24. In the case of Monica Bedi vs. State of A.P reported in 2011 CRI.L.J 427, the submissions of the learned counsel that Monica Bedi was prosecuted and punished by the competent Court of jurisdiction at Lisbon and the facts based on which the prosecution has been initiated resulting in her conviction are the same and, therefore, the conviction of the appellant is in teeth of Article 20(2) of the Constitution of India and section 300 of the Cr.P.C. The aforesaid submission was not accepted by the Apex Court for the simple reason that same set of facts can constitute an offence under two different laws. An act or omission can amount to constitute an offence under the IPC and at the same time constitute an offence under any other law. The bar to the punishment to the offender twice over for the same offence would arise only where the ingredients of both the offences are the same. The Article 20(2) of the Constitution of India is in the nature of an injunction against the State prohibiting it to prosecute and punish any person for the -20- same offence more than once but the initial burden is on the accused to take the necessary plea and establish the same.
25. In the case of State of Maharashtra vs. Saeed Hasan reported in 2018 SCC Online SC 1580, the Apex Court has considered the prosecution of the accused under sections 188, 272, 273 & 328 of the IPC who had already been prosecuted and punished for violation of the provisions of the Food & Safety Standards Act, 2006. The Apex Court has upheld the view taken by the High Court that under section 55 of the Food & Safety Standards Act the accused can be convicted for non compliance of the direction of the Food Safety Officers. As per the said provision, the failure to comply with the requirement of the Act, Rules or Regulations would result in a penalty which may extend to Rs.2 lakhs. No complaint for the offences under the IPC could have been preferred by the Food Safety Officer for violation of the prohibitory order and held that the non compliance of the provisions of the FSS Act, Rules or Regulations can be subject matter of prosecution under the IPC unless expressly or impliedly barred. There is no bar to the trial or conviction of the offenders under two different enactments but the bar is only to the punishment of the offenders twice for the same offence. The Apex Court has placed reliance over the judgment passed by the Apex Court in the case of State (NCT of Delhi vs. Sanjay) (2014) 9 SCC 772 and set aside the findings of the High Court by concluding that there is no bar for prosecution under the IPC merely because the provisions of the FSS Act prescribe penalties.
-21-26. In the case of J.K.Industries Ltd. vs. Chief Inspector of Factories and Boilers and others reported in (1996) 6 SCC 665, the Apex Court has considered the scope of section 92 of the Factories Act and held that section 92 contemplates a joint liability of the occupier and the manager for any offence committed irrespective of the fact as to who is directly responsible for the offence, what is made punishable under the Act is the blameworthy conduct of the occupier which resulted in the commission of the statutory offence and not his criminal intent to commit that offence. The rule of strict liability is attracted to the offences committed under the Act and the occupier is held vicariously liable along with the manager. The Legislature has itself taken care to dilute the rigor of section 92 by providing an exception to the strict liability rule by laying down a third party procedure in section 101, therefore, in view of the above, the offences under the Factories Act are not a part of general penal law but arise from the breach of a duty provided in it. The offences punishable under the Factories Act are based on the strict statutory offences for which establishment of mesn rea is not an essential ingredient, therefore, the ingredients of section 92 of the Factories Act and the IPC to constitute an offence are altogether different. In the present case, the petitioner has been punished for the contravention of the provisions of the Factories Act which even in the case of death or injury due to the accident in the factory but the commission of an offence by the manager or the occupier under the IPC is yet to be examined by the competent Court on the basis of the material collected by the prosecution agency, therefore, there cannot be any -22- bar to prosecute the petitioner under the provisions of the IPC by virtue of section 300 of the Cr.P.C or Article 20(2) of the Constitution of India.
27. In the case of Prabhakaran vs. State of Kerala (2007) 14 SCC 269, the Apex Court has examined the scope of section 304- A of the IPC and held that this section applies to rash and negligent act and does not apply to the cases where the death has been voluntarily caused. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which prudent or reasonable ms would not do in the circumstances attending it. A culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case.
28. Recently, in the case of the State of Arunachal Pradesh vs. Ramchandra Rabidas @ Ratan Rabidas & another reported in (2019) 10 SCC 75, the Apex Court has considered the issue whether a person who can be convicted for causing hurt to any person while driving a motor vehicle in a rash and dangerous manner under the Motor Vehicles Act can also be convicted under the IPC because the States Assam, Nagaland, Meghalaya, Manipur, Tripura, Mozoram and Arunachal Pradesh issued appropriate directions to all subordinate officers to ordinarily register cases against offenders of motor vehicle accidents only under the provisions of the Motor Vehicles Act. The Apex Court has held that the offences under Chapter XIII of the Motor Vehicles Act -23- provide a summary procedure for disposal of cases which are compoundable in nature under section 208 (3) of the Motor Vehicles Act but on the other hand the IPC is punitive and deterrent in nature. The principal aim and object is to punish offenders for offences committed under the IPC. The requirement of culpable rashness under section 304-A IPC is more drastic than negligence sufficient under the Law of Tort to create liability. When a person drives a vehicle so recklessly, rashly or negligently that it causes the death of a person and of which he had knowledge as a reasonable man that such act was dangerous enough to cause death, he may be attributed with the knowledge of the consequence and may held liable for culpable homicide not amounting to murder which is punishable under section 304 Part-II IPC, hence there is no conflict between the provisions of the IPC and the Motor Vehicles Act and both the statutes operate in entirely different spheres. The offences provided under both the statutes are separate and distinct from each other. The ingredients of offences under both statutes are different and an offender can be tried and punished independently under both statutes. The sentence imposed by the Court should be commensurate with the seriousness of the offence and should have a deterring effect on the wrong doers. The punishment of offenders of motor vehicle accidents under the IPC is stricter and proportionate to the offence committed as compared with the Motor Vehicles Act.
29. In the instant case, the petitioner was first prosecuted for offences under section 88 of the Act of 1948, Rule 108 of the Factories Rules, 1950, Rule 7, 7-A, 72 & 73-J of the M.P Factories -24- Rules, 1962 and the penalty was imposed under section 92 of the Factories Act, 1948 over the petitioner.
30. The aforesaid offences are briefly reproduced herein below:-
I) Section 88 of the Factories Act, 1948:- Notice of certain accident.
II) Rules 108 of the Factories Rules :- List to be maintained of persons holding confidential position or position of supervision of management.
III) Rule 7 of M.P Factories Rules, 1962:- Renewal of license IV) Rule 72 of the M.P Factories Rules, 1962 :- Fire protection. V) Rule 73-J of the M.P Factories Rules, 1962 :- Thermic fluid heaters.
Whereas, the criminal case lodged by the prosecution is for offences punishable under section 287, 338 & 304-A of the IPC.
Brief nomenclatures of aforesaid offences are as follows:-
(I) Section 287 of I.P.C :- Negligent conduct with respect to machinery.
II) Section 338 of I.P.C:- Causing grievous hurt by act endangering life or personal safety of others. III) Section 304-A of I.P.C :- Causing death by negligence.
31. It is clear from the aforesaid provisions that under the Factories Act and the Indian Penal Code the ingredients to constitute the offence are altogether different. Under the Factories Act there is a concept of vicarious liability of the occupier and the manager and they can be punished for the violations of notice of certain acts and omissions viz. not sending the information of accident in the factory, running the factory without obtaining appropriate license, not keeping the attendance register of labourers, not providing adequate training to the labourers, not adopting safety mechanism in the factory etc. whereas under
sections 287, 338 & 304-A IPC they can be punished for negligent conduct with respect to the machinery, causing grievous hurt by act endangering life or personal safety of others and causing death -25- by negligence. The Magistrate prosecuting the accused under the Act of 1948 cannot examine the applicability of sections 287, 338 & 304-A of the IPC because no FIR or compliant was filed against him under these provisions. The petitioner pleaded guilty and the Magistrate has imposed fine and punishment till rising of the Court which was happily accepted by the petitioner but so far the allegations under sections 287, 338 and 304-A IPC are concerned, they are yet to be examined by the competent Court, therefore, the ingredients of both provisions of the Act are altogether different. Hence, in view of the verdict of the Apex Court, as discussed above, there is no bar in prosecuting the petitioner under both the enactments and over and above the Act of 1948, there is no bar or prohibition of separate trial in respect of the offence under the IPC. The power given to the police officer and the Magistrate under the Cr.P.C cannot be taken away to prosecute an offender who has committed an offence under the provisions of the IPC, if the Police receives an information about the commission of cognizable offence. In view of the law laid down in the case of Lalita Kumari vs/ Government of Uttar Pradesh and others reported in (2014) 2 SCC 1, the Police is bound to register an FIR and submit a final report before the competent Magistrate. Even in the Cr.P.C there is no bar or prohibition for the Police authority to register an FIR if an offence is said to have been committed under different enactments. During trial it is for the accused to come up with such plea and the same is liable to be considered by the competent Court while hearing the trial because, as held above, the ingredients of various penal provisions are liable to be examined as -26- there is no bar in prosecuting the accused in two different enactments then the proceedings of the criminal trial and the IPC cannot be quashed by virtue of section 300 of the Cr.P.C and Article 20(2) of the Constitution of India.
32. Thus, we are of the opinion that the order passed by this Court in the case of Neeraj Verma (supra) in MCRC No.3222/15 does not lay down a correct proposition of law inasmuch as the judgment/order pronounced in respect of a complaint governing the provisions of the Factories Act and Rules does not prohibit separate trial in respect of the offences under the Indian Penal Code. The question of law is answered accordingly.
33. The matter be placed before the Bench as per roster in view of the opinion of this Court on the question of law having been answered in the above manner.
(S.C. SHARMA) (VIVEK RUSIA)
JUDGE JUDGE
hk/
Digitally signed by Alok Gargav
Date: 2020.05.11 15:17:44 +05'30'