Madras High Court
G.R.Arunkumar vs The State Of Tamil Nadu on 16 December, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Crl.O.P.(MD)No.6050 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.12.2024
CORAM:
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.(MD)No.6050 of 2020
and
Crl.M.P.(MD)Nos.3208 and 3209 of 2020
G.R.Arunkumar ... Petitioner/Accused
Vs.
The State of Tamil Nadu
Rep. through
Deputy Director of Industrial Safety and Health.
Tuticorin District,
Tamil Nadu. ... Respondent/Complainant
PRAYER : Criminal Original Petition filed under Section 482 of
Criminal Procedure Code, to call for the records and quash the charge
sheet filed in STC No.409 of 2018 pending trial on the file of the Chief
Judicial Magistrate, Tuticorin insofar as the petitioner is concerned.
For Petitioner : Mr.K.Anantha Krishnan
for Mr.V.Meenakshi Sundaram
For Respondent : Mr.S.Ravi
Additional Public Prosecutor
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Crl.O.P.(MD)No.6050 of 2020
ORDER
The earlier order passed by this Court dated 15.06.2020 brings out the facts of this case and the various issues that have been raised in this petition. Hence, the same is extracted hereunder:
“The criminal original petition has been filed by the Occupier of Vedanda Limited [Sterlite Copper], Thoothukudi, to quash the proceedings pending against him in STC.No.409 of 2019 on the file of the Chief Judicial Magistrate, Thoothukudi.
2.The respondent Deputy Director of Industrial Safety and Health, Thoothukudi filed the the above petition on 14.06.2019, for the offence under Section 7A(2)(a) and Section 21(2) r/w Rules 53, Schedule Part A Class 3(5) of the Factories Rules, 1950.
3.The case of the complainant is that a Worker namely Kartheepan aged about 33 years, when he was in work in the accused factory at red claim tunnel, on 17.03.2017 at 2.40pm, he was collecting the spilled rock phosphate ore near the conveyor belt, due to the absence of any protection mechanism like sheet metal box type guard or wire mesh guard for the conveyor belt, he was pulled into the conveyor belt and sustained grievous injury on his left arm and in this accident the victim worker lost his left arm.
4.The accused occupier, who is responsible for providing adequate safety measures, as required under the Factories Act, has not 2/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 provided the same, which resulted in the accident and therefore, the respondent filed the above complaint under Section 200 CrPC r/w 105of the Factories Act, before the learned Chief Judicial Magistrate, Thoothukudi for the aforesaid offences.
5.The learned Chief Judicial Magistrate has taken cognizance of the complaint and also issued summons to the petitioner/accused. Aggrieved over the same, the petitioner occupier filed this petition to quash the proceedings pending against him.
6.The learned Counsel for the petitioner canvassed the following grounds in support of this petition:
(i) The accident has taken place in the Factory on 17.03.2017 and the same was duly intimated to the Inspector of Factories on the same day. The investigation on the accident was conducted by the Inspector of Factories on 22.03.2017 at 11.00am. The report was also submitted by the Deputy Director of Industrial Safety and Health, Thoothukudi, to the Additional Director, vide his proceedings in Na.Ka.No.E/713/2017, dated 21.04.2017, pointing the reasons for the accident that the worker was allowed to do work, while conveyor belt was running and suggestions were also made to provide certain safety measures to prevent the accident in future. Therefore, the respondent was having the knowledge of the accident as on 22.03.2017, but the complaint was filed only on 14.06.2019 beyond the statutory period prescribed in the Act. In this regard, the learned Counsel referred to the provision under Section 106 IPC of the Factories Act, 1948 and would submit that no court shall take cognizance of any offence under the Factories Act, unless the complaint thereof, is made with in a period of 3/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 three months from the date of which, the alleged commission of offence came to the knowledge of the Inspector of Factories.
(ii) The Environmental Licence of the factory was not extended by the Pollution Control Board and therefore, the factory shut down its operation from 09.04.2018 and while so, the respondent conducted another investigation without any notice to the petitioner occupier, when there was no body in the factory and based on the second investigation dated 15.05.2018, the present complaint is lodged and the second investigation was made purposely to overcome the limitation as contemplated under Section 106 of the Factories Act.
(iii) Even in the second investigation, the report dated 15.05.2015, the date of the last investigation is mentioned as 28.06.2017 and therefore, when there was an investigation as early on 22.03.2017 and on 28.06.2017, the respondent was having the knowledge of the offence, did not prefer any complaint within the statutory period and therefore, the complaint is barred by limitation.
(iv) This complaint is lodged as against the occupier alone without impleading the company as a necessary party to the proceedings. Without the company being shown as an accused, the occupier cannot be held responsible for the offence, which is said to have taken place in the company. Under the Factories Act, the occupier will be liable only when the company commits an offence. This Special Act is more or less similar to the provision under Section 141 of the Negotiable Instrument Act and therefore, this complaint filed without impleading the company as an accused is not maintainable.
(v) In support of his contention the learned Counsel for the 4/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 petitioner relied upon the decision of this Court in K.R.Mohan Vs the Labour Enforcement Officer (Central), Government of India, [Crl.O.P.Nos.10643 and 11527 of 2013, etc, decided on 28.01.2020], wherein this Court quashed a similar complaint in the following terms:
“8.It is settled proposition of law that if there is any violation of the statutory conditions of law, company can be prosecuted. If the complainant wants to prosecute against the petitioners, they should also prosecute the Manager/General Manager or their directors, who are looking after day to day affairs of the company. But it is settled proposition of law, without prosecuting the company, the officers or directors, Additional General Managers, alone cannot be prosecuted and in this regard, Madurai Bench of this Court while dealing with the issue in respect of Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970, wherein, the company has not been prosecuted, quashed the complaint by order dated 12.10.2018. Though the citation referred to by the learned Counsel for the petitioners reported in AIR 2012 SCC 2795 (Aneeta Hada and Others Vs Godfather Travels and Tours Private Limited, and others) decided by Hon'ble Supreme Court, is the case under Section 138 of the Negotiable Instruments Act, as held by Supreme Court, Section 141 of the NI Act is pari materia with Section 25 of the Contract Labour (Regulation and Abolition Act, 1970. Since the respondent has not impleaded the BHEL as an accused, following the above decisions, this Court has not hesitation to hold that without impleading the company 5/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 as accused, the respondent cannot prosecute against the petitioners alone. Therefore, in the facts and circumstances of the case and in view of the decisions of the Hon'ble Supreme Court and also Madurai Bench of this Court cited Supra, this Court is inclined to quash the complaint, invoking Section 482 CrPC.
9.In the result, the Criminal Original Petitions are allowed.”
7.When the matter was listed for admission on 11.06.2020, the learned Additional Public Prosecutor requested for an adjournment that he was not served with the typed set of papers and therefore, the matter was adjourned to 12.06.2020 and the learned Counsel for the petitioner was directed to furnish a copy of the typed set of papers to the learned Additional Public Prosecutor.
8.Mr.K.K.Ramakrishnan, learned Additional Public Prosecutor, vehemently opposed this petition that the petition is not at all maintainable as the grounds raised by the petitioner are legally not sustainable.
9.The learned Additional Public prosecutor submitted that the report dated 22.03.2017 is only a investigation report submitted by the Deputy Director to the Additional Director disclosing the occurrence and his finding. The Deputy Chief Inspector of Factories himself inspected and came to the conclusion that the occupier committed the offence on account of his failure to safe guard the machineries in the factory premises, as stated in his report dated 15.05.2018. So the earlier 6/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 report dated 22.03.2017 is only investigation report and the same cannot be treated as the knowledge of the commission of the offence as required under the 106 of the Factories Act. It is only headed as “fLk; tpgj;J Fwpj;J tphpthd Gydha;T mwpf;if”(investigation report into the major accident) and on 15.05.2018 alone, the authority found that the accident was happened due to the running of the machineries in contravention of the Factory Act and Rules and consequential determination of the offence treating the above contravention of the Act leads to the accident. So, the date 15.05.2018 alone is the date of knowledge of the offence as required under the 106 of the Factories Act. In this aspect, the learned Additional Public Prosecutor relied upon the decision of the Hon’ble Supreme Court in 1973 (3) SCC 524, wherein, it has been held as follows:
“1. This is an appeal by Special Leave from the judgment of the High Court of Gujarat at Ahmedabad in Criminal Revision Application No. 244 of 1969. By the judgment the High Court set aside the order of the Chief City Magistrate,, Ahmedabad, dismissing the complaint filed by the Inspector of Factories against the Manager of Arun Mills Ltd., the appellant here, on the ground that the prosecution was barred by time.
2. The facts of the case lie in a narrow compass. One Chandrakant Jethalal was a worker in the factory in question of which the appellant was the Manager. On February 27, 1968, the worker while cleaning the clip stentering machine with a rag near the deliveryside slipped when the machine was in motion, and while trying to save himself, his right hand was trapped into the bevel 7/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 gears of the stentering machine. The bevel gears were at a height of three feet from the ground floor and are dangerous parts of the stentering machine and were not safe by position and construction.
As a result of the injury his fingers had to be amputated. In respect of this accident, the Inspector of factories received a report from the concerned authority on February 28, 1968. The Inspector visited the factory on 30-7-68 and made an enquiry into the accident. Thereafter he filed the complaint on 20- 9-68 for an offence punishable under s. 92 of the Factories Act. 1948 (hereinafter called the Act). On behalf of the accused a preliminary objection was taken that the prosecution was barred by time in view of- the provisions of s.106 of the Act which provides that no Court shall take cognizance of any offence punishable under the Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector. The Magistrate found that the report conveyed knowledge of the commission of an offence and that the Inspector came to know about the commission of the offence on the date the report was received by him and therefore the complaint was barred by time. It was against this order that the revision application was filed before the High Court. The High Court came to the conclusion that the Inspector did not get any knowledge of the commission of an offence under the Act from the report, and as he got the knowledge of the commission of the offence only on the date of the enquiry, the complaint was filed within time.
3. So, the main question in this case is whether the facts 8/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 mentioned in the report were sufficient to convey the knowledge of the commission of an offence under the Act. There is no controversy here that the offence committed if any, is one under clause (iv)(c) of sub-section (1) of Section 21 of the Act. Section 21(1)(iv)(c) reads as follows:--
"Unless they are in such position or of such construction as to be safe to every person employed in the factory as they would be if they were securely fenced, the following, namely,--
(a) every part of an electric generator, a motor or rotary convertor;
(b) every part of transmission machinery; and
(c) every dangerous part of any other machinery, shall be securely fenced by safeguards of substantial construction which shall be kept in position while the parts of machinery they are fencing are in motion or in use:"
A plain reading of section 21 (1) (iv) (c) would indicate that every dangerous part of any other machinery shall be securely fenced by safeguard of substantial construction which shall be kept in position while the parts of machinery they are fencing are in motion or in use and that is to be done unless they are in such position or of such construction as to be safe to every person employed in the factory as they would be if they were securely fenced. other words, if those dangerous parts are in such position or are of such construction as to be safe to every person employed, the question of securely fencing by safeguard of substantial construction and of keeping them in position while the parts of machinery they are fencing are in motion or in use will not arise.
9/36https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 The question is whether the report revealed all the necessary elements that go to constitute the offence.
4. The report was in Form No. 21, as prescribed under Rule 103 of the Act. In column 9(a) of the report which is the column regarding "cause or nature of accident of dangerous occurrence", the facts stated in answer are, "While cleaning the clip stenter machine with a rag in his right hand near the bevel gears the rag and the right palm slipped inside the gear and crushed the whole palm with five fingers." In column 9(b)(i) which is the column headed "If caused by machinery, give name of machine and part causing the accident", the facts stated are, "bevel gear of clip stenter driving the chain." In column 9(b)(ii) which is the column "State whet-her it was moved by mechanical power at the time" the fact stated was, 'mechanical" and in column 9(c) which states "state exactly what injured person was doing at the time." the answer given was, "cleaning the clip stenter machine".
5. The statements in the report only indicated that an accident has taken place to the Worker who was cleaning the clip stenter machine with a rag in his right hand near the level gear, which is a dangerous part of machinery and the rag and the right palm slipped inside the gear and whole palm with five fingers was crushed. It also indicated that the part of the machinery was moved by mechanical power and the accident took place when the worker was cleaning the clip stentering machine. The report did not state that the dangerous parts of the machinery were not in such position or of such construction as to be safe to every person employed in 10/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 the factory as they would be if they were securely fenced. Nor was it stated that dangerous parts of this machinery were not securely fenced by safeguards of substantial construction or that they were not kept in position while the parts of the machinery they were fencing, were in motion or in use. It would be difficult for any one reading the report to come to the conclusion that an offence under s. 21 (1) (iv) (c) has been committed. When the Inspector was examined in the case, he categorically stated that the report did not convey to him any knowledge as regards the commission of the offence. We do not, say that the statement of the Inspector in his evidence that he did not acquire knowledge of the commission of the offence till he made the inquiry is conclusive. But we think that his evidence read in the light of the report can only lead to the conclusion that the Inspector did not acquire the knowledge of the commission of the offence when the received the report. We, therefore, accept the finding of the High Court that the Inspector did not acquire knowledge of the commission of the offence from the report and that he gained the knowledge of the commission of the offence only on 30th July 1968.
6. It was argued on behalf of the appellant that when the report conveyed the information about the accident, the Inspector should have enquired into it with reasonable promptness and as s. 106 prescribes a period of only three months, from the date of the knowledge of the commission of the offence, for filing a complaint, the Inspector ought not have waited for a period of 6 months for making the inquiry. It was argued that if an Inspector were to come 11/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 to know of an accident, he cannot wait till such time as he choose to make the inquiry and then say that he came to know of the commission of an offence under the Act as a result of the inquiry and thus postpone at his whim the starting point of limitation. There can be no doubt that it the Inspector had conducted the inquiry earlier, he would have come to know of the commission of the offence earlier. But our attention was not drawn to any provision in the Act or the rules framed under the Act which obliged the Inspector to conduct an inquiry within any specified period after the receipt of the report into the cause 'of accident. And in interpreting a provision in a statute prescribing a period of limitation for institution of a proceeding, questions of equity and hardship are out of place. See the decisions of the Privy Council in Nagendra Nath v. Suresh Chandra(AIR 1932 (PC) 165) and Magbul Ahmed v. Pratap Narain (AIR 1935 (PC) 85) We have to go by the clear wording of the section, and the date of knowledge of the commission of the alleged offence alone is made the starting point of limitation.
7. In State v. Keshavlal,(A.I.R. 1958 Bombay 243) Mudholkar, J. had to deal with a similar question. No doubt, he was concerned with the interpretation of section 23(2) and section 79 of the Mining Act, 1952. Section 79 of the Mining Act provides:-
"No court shall take cognizance of any offence under this Act, unless complaint thereof has been made.
(i).................12/36
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(ii) within six months of the date on which alleged commission of the offence came to the knowledge of the Inspector."
Section 23(2) states that when a notice given under subsection (1) relates to an accident causing loss of life, the authority shall make an inquiry into the occurrence within two months of the receipt of the notice. It was contended on behalf of the State in that case that the commission of the offence came to the knowledge of the Inspector only after the completion of the inquiry and that the complaint having been made within, six months of the completion of the inquiry, was within time. On the other hand, it was contended for the accused that where the knowledge of the commission of an offence was dependent upon the result of an inquiry, such inquiry must necessarily be commenced within two months of the date of intimation of the accident and that the period of two months cannot be extended by delaying the inquiry. 'Dealing with the question, the learned Judge. said :-
"It was then said that had an inquiry be instituted earlier, the Inspector would have come to know of the breach in question earlier and so limitation must be deemed to have started running from the date of the notice of the accident or at most from the expiry of two months of the giving of the notice. It is common ground that the knowledge of an accident is not the same thing as the knowledge of an "offence", that is of a breach which is made penal. Therefore, the date of notice of the accident can in no circumstance 13/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 be regarded as a starting point for the commencement of limitation. The expiry of two months from the date of notice cannot, for the same reason be regarded as a starting point of limitation."
"No doubt, had the inquiry been made earlier the fact of the commission of the breach or offence would have come to the knowledge of the Inspector earlier. But section 79 (ii) does not say that the date on which an Inspector would or ought to have acquired knowledge of the commission of an offence had he been diligent or had he complied faithfully with the provisions of the Act, would also be a starting point of limitation. In the circumstances, therefore, the delay in making the inquiry however irregular or deplorable cannot affect the question of limitation."
8. As Section 106 makes the date of knowledge of the commission of the offence the starting point of the period of limitation, we find it difficult to read the section so as to make the date on which the Inspector would or ought to have acquired knowledge of the commission of the offence had he been diligent, the starting point of limitation especially where, as here, the statute does not provide for an inquiry into the accident, much less the period within which the inquiry has to be made. It is only in the jurisprudence of Humpty Dumpty that we can equate the "date on which the alleged offence came to the knowledge of an Inspector"
with the date on which the alleged offence ought to have come to his knowledge. We think that the High Court was right in its conclusion.14/36
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9. We therefore, dismiss the appeal.”
9. The learned Additional Public Prosecutor has also relied upon yet another judgment reported in 1952 MWN Criminal 193, wherein, the Hon'ble Supreme Court has held as follows:
“2. This appeal has been referred to a Bench by Somasundaram J. on account of a difference of view between himself and Subba Rao J. with regard to the proper construction to be put upon section 106, Factories Act, 63 of 1948. The facts are stated in the judgment of our learned brother, Somasundaram J. and need not be restated here. What happened was that the respondent here failed to comply with the provisions of section 14, Factories Act, by not putting up a dust-proof husk chamber in the factory, and this was noticed by the Inspector of Factories when he visited the place on 5-10-1950. As a result of that, the Inspector issued a notice to the manager and the occupier to rectify this defect within a period of time mentioned by him. Nothing was done with the result that when the Inspector again visited the factory on 24-1-1951 it was found that the 'status quo ante' continued, whereupon a charge-sheet under section 92, Factories Act, for having committed an offence under section 14, Factories Act, was laid before the Magistrate on 15-3-1951.
Among other points, the learned Magistrate found that the prosecution was barred by the provisions of section 106, Factories Act, 15/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 because the alleged offence came to the knowledge of the Inspector on 5-10-1950 when he first visited the factory, and the prosecution having been launched more than three months thereafter, was barred by the provisions of that section. Subba Rao J. in -- 'Cr. R. C. No. 417 of 1950' took the view that such offences were continuing ones and, according to the learned Judge, if the argument of limitation were to prevail, it would lead to an anomalous situation that once the authorities concerned overlooked a contravention of a certain specific provision by the manager or the owner of the factory, they would be precluded for ever from complaining against subsequent delinquencies on his part. Such being the case, the learned Judge was of opinion that, being a continuing wrong, every succeeding act gave rise to a cause of action.
3. It cannot be disputed that the offence committed is a continuing one, for the non-erection of a dust proof husk chamber, for every day of such failure, amounts to an offence. If it is an offence on a particular date, it does not cease to he an offence on the next day and so on, until the deficiency is rectified. We feel that the offence is certainly a continuing one. But the question is what exactly is the import of the expression "the offence came to the knowledge of the inspector". Does it mean the date when the offence first came to the knowledge of the inspector, or a continuing offence coming to the knowledge of the Inspector on any subsequent day? Section 106 is modelled somewhat on section 146 of the Factory and Workshop Act, 1901 (1 Edward 7, Ch.
22), which is as follows:
"The information shall be laid within three months after the date at which the 'offence comes to the knowledge of the inspector' 16/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 for the district within which the offence is charged to have been committed....."
Here also, the words are 'within three months after the date at which the offence comes to the knowledge of the inspector". Therefore, it seems to us that in interpreting the present section the meaning put upon the words in a similar English statute by English Courts will be very helpful. In -- 'Verney v. Mark Fletcher and Sons Ltd.', 1909-1-KB 444, a Divisional Court of the King's Bench division consisting of Lord Alverstone C. J., Higham J. and Walton J. had to construe that section. What happened there was that in May 1905 and again on March 12, 1908 an Inspector of Factories for the district in which a factory of the respondents was situated, visited the factory and found that the fly- wheel of an engine was not fenced as required by the Factory and Workshop Act, 1901. Nothing seems to have been done except that he told the respondents that the fly-wheel was not securely fenced and required them to fence it in accordance with the provisions of the Act.
Again, he visited the factory on 1st July 1908 and found that the same fly-wheel was still unfenced. On 22nd July 1908, the Inspector laid information against the respondents for an offence under section 135 of the Act in that the factory was, on 1st July 1908, not kept in conformity with the Act in that the fly-wheel was not securely fenced as required by section 10 of the Act. It was argued before the Divisional Court by eminent Counsel like Avory K. G, and Patrick-Hastings that since the Inspector had knowledge of this deficiency in May 1905 and in March 1908 it should be said that the alleged offence came to the knowledge of the Inspector more than three months prior to the date of 17/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 the initiation of the prosecution. The learned Lord Chief Justice who delivered the judgment, in answer to this contention expressed the following opinion:
"The information in the present case charges the respondents that their factory was on July 1, 1908, not kept in conformity with the Act by reason of the omission to fence their fly-wheel. If that be proved, I have not the slightest doubt that there was on July 1 a direct and continuing breach of the provisions of section 10. It is said that because in May 1905 and again in March 1908, the fly-wheel was unfenced, to the knowledge of the inspector, and the information was not laid until July 22, 1908, the requirements of section 146 have not been complied with. In my opinion, an offence was committed on July 1, 1908, just as much as in March 1908, or May 1905, and the offence committed on July 4 came to the knowledge of the inspector on that day, when he visited the respondents' factory. I therefore, come to the conclusion that the information was laid in time."
4. We respectfully are in agreement with these dicta.
5. In the present case, as we have already hold, the offence committed is a continuing one, and when the Inspector visited the factory on the second occasion on 24th January 1951 the, offence committed on that date came to his knowledge on that day, and the prosecution having been launched within three months of that date is in time. We are therefore of opinion that the learned Magistrate was wrong in the construction he put upon section 106 of the 18/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 Factories Act. In view of the fact that the appeal has been filed mainly with the object of having a pronouncement on this question of law, we think it is unnecessary to proceed with the matter any further except by stating what the correct law, in our opinion is. We there fore set aside the order of acquittal but in the circumstances we do not wish to impose any sentence on the respondents. The other two points are only subsidiary matter on which we agree with the lower court.
10. According to the learned Additional Public Prosecutor, in the view of the above law of the Hon’ble Supreme Court, the cognizance of offence was taken only 15.05.2018 alone taken in consideration for computing the period of limitation.
11. The learned Additional Public Prosecutor would further submit that the provision of the Negotiable Instrument Act is not similar to the Factories Act penal provision and the same was not applicable to the present case. Under the Factories Act, as per section 6 and 7, at the time of the submission of the Form II for every year, the responsibility of the officer is fixed in column No.4 which reads as “particulars of the occupier of the factory who has ultimate control over the affairs of factory and in whose name license to be issued”. So, he is responsible and he alone is liable for prosecution. Hence complaint is maintainable. Even otherwise, it is still open to the complainant to implead the company by way of proper amendment petition. In the judgment cited by the petitioner, the above said provision was not considered and answered and therefore, the judgment is not applicable.
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12. The learned Additional Public Prosecutor further submitted that it is not obligatory on the part of the respondent officer to disclose the consideration of the reply given by the petitioner and also no provision in the Act required as such. The judgment cited by the counsel for the petitioner in this aspect distinguishes on facts. In the said judgment, there was detailed explanation regarding the requirement of the various ventilation provisions in the Railway office submitted. But in this case, the petitioner's reply did not contain anything regarding the fault mentioned in the report dated 15.05.2018 and also non- consideration of the report and the effect are all matter for trial and at the stage of quash proceedings under section 482 of Cr.P.C., this Court have limited jurisdiction and did not have jurisdiction roving enquiry which amount to the conducting mini trial.
13. He also pointed out the presumption clause under Section 104-A under the Factories Act and submits that in any proceeding for an offence for the contravention of any provision of this Act or rules made thereunder consisting of a failure to comply with a duty or requirement to do something, it shall be for the person who is alleged to have failed to comply with such duty or requirement, to prove that it was not reasonably practicable or, as the case may be, all practicable measures were taken to satisfy the duty or requirement. Therefore, he prays for dismissal.
14. This Court paid it's anxious consideration to the rival submissions and also to the documents placed on record.
15. The limitation required under Section 106 of the Factories Act is three months from the date of the commission of the offence came 20/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 to the knowledge of the Inspector of Factories.
16. As per the explanation as provided for the purpose of Section 106 states that in case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues.
17. The learned Counsel for the petitioner distinguish the judgment referred to by the learned Additional Public Prosecutor and submits that in P.D.Jamberkar v. State of Gujarat, there was no report in Form 18 after the inspection as filed in this case. The respondent has submitted his report to the Additional Director after the inspection in Form 18 on 22.03.2017 and there was another investigation on 28.06.2017. The question that involved in P.D.Jamberkar v. State of Gujarat (supra) is that whether the facts mentioned in the report by the authority itself would be sufficient to convey the knowledge of the commission of an offence under the Act. Whether the report submitted to the Additional Director under Form 18 subsequent to the investigation is sufficient for calculating the limitation for the cognizance on the commission of offence or not, is a moot point to be decided.
18. That apart, though the learned Additional Public Prosecutor submits that the occupier alone can be prosecuted when there is no explicit provision under the Act similar to Section 141 of the Negotiable Instruments Act, this Court, in Crl.OP.Nos.10643 & 11527 of 2013 has quashed a similar complaint in K.R.Mohan v. Labor Enforcement Officer, Government of India.
19. In view of the foregoing discussions, this Court is of the considered opinion that the petitioner has made out a prima facie case 21/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 and therefore, this petition is admitted. There shall be an order of interim stay for a period of eight weeks and the presence of the petitioner before the trial Court is dispensed with.
20. This Court also places on record it's appreciation to the learned Additional Public Prosecutor for his readiness even at the stage of admission. Post the matter after eight weeks.”
2.Heard the learned counsel on either side.
3.The crux of the issue that is involved in this petition revolves around four points and they are as follows:
“(a) The company has not been made as an accused in this case and therefore, the proceedings itself is unsustainable;
(b) The complaint is barred by limitation and it has been filed beyond the period prescribed under Section 106 of the Factories Act;
(c) There is total non-application of mind on the explanation given by the petitioner both at the time of granting sanction and at the time of filing the private complaint;
(d) The very basis on which the so-called second 22/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 inspection was made is unsustainable, since the second inspection is said to have been made on 15.05.2018 and whereas the company itself was shut down from 09.04.2018 since the Environmental Licence of the Factory was not extended by the Pollution Control Board.”
4.In the instant case, the incident took place on 17.03.2017. This was informed through Form-18 by the company on 20.03.2017.
Thereafter, after the injured was discharged from the hospital, Form 18-B was filed on 06.04.2017. The show cause notice was issued on 22.05.2018 and the reply was given by the company on 29.06.2018. The same was rejected by letter dated 19.07.2018 and the sanction was given for filing the complaint on 03.08.2018 and the private complaint was ultimately filed on 14.08.2018.
5.It is quite apparent from the above dates that the private complaint was not filed before the period of three months or six months as the case may be from the date of knowledge as a privided under 23/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 Section 106 of the Factories Act. A stand has been taken to the effect that the inspection was conducted by the concerned authority only on 15.05.2018 and on ascertaining the facts, the show cause notice was given and on receipt of the reply, it was not found convincing and therefore, sanction was sought for and the private complaint was filed and all these events took place within the period of limitation.
6.The above stand taken by the respondent is unsustainable in the light of the order passed by this Court in Crl.O.P.Nos.23034 and 23035 of 2015, dated 19.08.2019. The relevant portions are extracted hereunder:
“...14.It will be relevant to consider at this stage as to whether the complaint is barred by limitation under Section 106 of the Factories Act.
15.Useful relevance can be placed to the judgment of the Hon'ble Supreme Court in J.J.Irani & Another referred supra. The relevant portions of the judgment is extracted hereunder :
“10. There is no dispute about the meaning of the term “commission of the offence” or “knowledge,” hence the question is essentially: when did the Inspector come to know of the commission of the offences? Section 106 of the Act reads as follows:24/36
https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 “Section 106: Limitation of prosecution: No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector:
Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.
[Explanation: - For the purpose of this section -
(a) in the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues;
(b) where for the performance of any act time is granted or extended on an application made by the occupier or manager of a factory, the period of limitation shall be computed from the date on which the time so granted or extended expired.]”
13. The High Court accepted that the starting point for limitation was the date of knowledge of the commission of offence but took the view that in the present case the date of accident and the date of knowledge of the commission of the offence are different. The High Court relied on the decision of this Court in P.D. Jambekar v. State of Gujarat, (1973) 3 SCC 524, in which this Court observed as follows:
“As Section 106 makes the date of knowledge of the commission of the offence the starting point of the period of 25/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 limitation, we find it difficult to read the section so as to make the date on which the Inspector would or ought to have acquired knowledge of the commission of the offence had he been diligent, the starting point of limitation, especially where, as here the statute does not provide for an inquiry into the accident much less the period with which the inquiry has to be made. It is only in the jurisprudence of Humpty Dumpty that we can equate the “date on which the alleged offence came to the knowledge of an Inspector” with the date on which the alleged offence ought to have come to his knowledge. We think that the High Court was right in its conclusion (para 8).”
14. The High Court took the view that it cannot be said that the complainant came to know of the commission of the offence in the preliminary inquiry conducted on 5.3.1989 by the Chief Inspector of Factories in his presence by distinguishing the difference between “knowledge of an accident” and “knowledge of commission of the offence.” The High Court observed that the complainant could have known of the breach only when the cause of accident, which was inquired into, was reported by the Chief Inspector of Factories in his report, which was received by the complainant on 23.04.1990; and it was only from the inquiry report that it could be gathered that the accident of fire took place because of breach of provisions of law.
15. We have heard the matter and considered the issue at length and we find ourselves unable to uphold the reasoning of 26/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 the High Court. Jambekar’s case (supra), is of no assistance in deciding the present case. In that case this Court accepted that from a reading of the report of the incident it was difficult for anyone to come to the conclusion that an offence under Section 21(1)(iv)(c) has been committed. The Inspector’s statement that the report did not convey to him any knowledge that the offence was committed was accepted and this Court concluded that the Inspector did not acquire the knowledge of the ‘commission of the offence’ when he received the report. The case before us is entirely different. Here the Inspector was himself part of the team, which conducted the preliminary inquiry between 5th and 6th March, 1989. As observed earlier, the inquiry is a detailed investigation going into all aspects of the occurrence. In these circumstances it is not possible to hold that the Inspector of Factories, who undertook a detailed inquiry into the accident along with the Chief Inspector of Factories, remained ignorant that the offences in question have been allegedly committed. It is proper to assume that an officer, conducting an investigation, comes to know what has happened, that being the only purpose of the investigation.
16.It is clear from the above judgment, that the limitation has to be calculated either from the date of commission of the offence or from the date on which it came to the knowledge of the concerned authority.
The complaint must be filed within three months from the date on which the offence came to the knowledge of the concerned authority. Beyond that, a Court cannot take cognizance of any offence punishable under 27/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 the Act.
17.In the present case, the alleged commission of the offence came to the knowledge of the concerned authority as early as in the month of February and August 2014 respectively; after Form 18 was filed for both the incidents. The Show Cause Notice itself came to be given only in March 2015, which itself is beyond the period of limitation. The complaint came to be filed only in the month of June 2015. Therefore, the complaint itself is barred by limitation and the Court below ought not to have taken cognizance of the complaint, since it is barred under Section 106 of the Factories Act.”
7.It is clear from the above that the limitation has to be calculated from the date of commission of the offence or from the date on which it came to the knowledge of the concerned authority. From then, it has to be filed within the period of three months or six months as the case may be.
Beyond that, the Court cannot take cognizance of the offence.
8.In the case in hand, the incident had taken place on 17.03.2017 and Form 18 was filed by the petitioner on 20.03.2017. That apart, Form 18-B was also filed on 06.04.2017. On receipt of the same, an inspection was infact conducted which is evident from the communication dated 28/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 21.04.2017 by the Joint Director. Hence, the knowledge regarding the incident was right from 20.03.2017 and whereas, the show cause notice itself came to be given only on 22.05.2018, which is well beyond the period of limitation. The limitation cannot be calculated from the so-called second inspection which was done when the factory was already shut down due to the non-extension of the licence by the Pollution Control Board. In the light of this finding, the very cognizance taken by the Court below of the private complaint is illegal.
9.The other issue that has to be taken into consideration by this Court is the reply that was given by the petitioner for the show cause that was issued by the respondent. The petitioner had given a detailed reply dated 29.06.2018. This reply consisted of the defence that was taken by the company. This reply was outright rejected by letter dated 19.07.2018 and the sanction was given and a private complaint was filed. In none of these proceedings, the reply given by the petitioner was dealt with and straightaway the prosecution has been launched based on the stand that was taken by the respondent regarding this incident.
29/36https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020
10.The above issue was also covered by the order passed by this Court in Crl.O.P.Nos.23034 and 23035 of 2015, dated 19.08.2019. The relevant portions are extracted hereunder:
“....18.The petitioners have given a detailed reply for the Show Cause Notice issued by the respondent. This reply has not been taken into consideration either at the time of granting sanction or at the time of filing of the complaint. This Court has already held that where a reply has been given to the Show Cause Notice, the said reply has to be considered and dealt with at the time of filing of the complaint, failing which, the complaint itself becomes unsustainable on the ground of non application of mind. Useful reference can be made to the judgment of this Court in K.Masthan Rao .Vs. State, rep. by Inspector of Factories, First Circle, Vellore reported in 2014 (3) MWN (Cr.) 86. The relevant portions of the judgment is extracted hereunder:
“27. As pointed out earlier, the form 3A intimating notice of change of Deputy Chief Engineer, minutes of the Canteen Advisory Committee meeting, minutes of Safety Committee meeting, the report of examination of cranes, ropes, etc., building stability certificate were all forwarded to the respondent/complainant as well as the head of department. Thereafter, on 28.09.2012, another representation was made enclosing copy of the building stability certificate issued by the competent person and 30/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 simultaneously requesting the Chief Inspector of Factories to nominate recognised persons for signing them stability certificate. Despite all these factual submissions, the complaints have been filed by the respondent verbatim repeating the allegations made in the show cause notice. Surprisingly, there is no reference to the explanations submitted by the petitioners and as to how the petitioners have not complied with the deficiencies pointed out, as to how the same stand rectified and such other matters. In the show cause notice dated 09.04.2012, it has been stated that on 22.03.2012, an inspection was conducted in the factory and the deficiencies, which were noticed in the course of inspection, were listed out as serial nos. 1 to 16 and the petitioners were called upon to explain as to why, prosecution should not be initiated against them by giving them seven days time to submit their explanation in writing, failure to avail the opportunity would be considered that there is no explanation to offer and without further notice, action would be taken. Therefore, the respondent/complainant being a statutory authority having provided for an opportunity to the petitioner to show cause ought to have considered the correctness of the proprietary of the explanations offered.
28. In terms of Rule 102 of the Tamil Nadu Factory Rules, 1950, the Occupier, Owner or Manager of a factory shall furnish information to an inspector for the purpose of 31/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 satisfying himself whether any of the provisions of the Act have been complied with or whether any order of the Inspector has been carried out and any demand of such information, if made during the course of an inspection, shall be complied with forthwith or if made in writing, shall be complied with within seven days of receipt thereof. Thus, the rule contemplates an opportunity for compliance. If the respondent/complainant has pointed out certain contraventions and if the contraventions exist, the contravener is bound to comply with within seven days. The case on hand is slightly different in the sense that the petitioners have submitted their explanations showing cause in respect of the allegations made in the show cause notice. In such circumstances, the respondent/complainant cannot ignore the reply to the show cause notice and proceed to lodge the complaint, as if he has not received any reply.
29. As noticed above, there is no reference to the reply submitted by the petitioner. The complaint was signed by the respondent on 20.06.2012 and filed before the Court on 21.06.2012, presumably not in full form and appears to have been returned and re-presented on 30.09.2013. In the interregnum, the petitioner has been given the replies dated 16.04.2012 and 31.05.2012. That apart, the further explanations dated 12.07.2012 and 28.09.2012, were submitted much prior to the date on which, the complaint was 32/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 re-presented i.e., on 30.09.2013. There is no explanation forth coming as to why the complaint which was presented on 21.07.2012 was returned and as to why the complaint was represented after more than one year. Therefore, this Court has no hesitation to hold that the complaint is vitiated on account of total non-application of mind.”
11.In the light of the above discussions, it is not necessary for this Court to go into the other two issues that have been raised. This Court finds that the sanction given by the concerned authority and the private complaint filed by the respondent which has been taken cognizance by the Court below suffers from non-application of mind since the reply given by the petitioner was not even considered. That apart, the cognizance of the complaint has been taken place beyond the period of limitation provided under Section 106 of the Factories Act. Hence, the continuation of the criminal proceedings against the petitioner will result in abuse of process of law which requires the interference of this Court.
12.In the result, the proceedings in STC No.409 of 2018 on the file of the Chief Judicial Magistrate, Tuticorin, is hereby quashed and 33/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 this Criminal Original Petition stands allowed. Consequently, connected miscellaneous petitions are closed.
16.12.2024 Index: Yes/No Internet: Yes/No sji To
1.The Chief Judicial Magistrate, Tuticorin.
2.Deputy Director of Industrial Safety and Health, The State of Tamil Nadu, Tuticorin District, Tamil Nadu.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
34/36https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 35/36 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.6050 of 2020 N.ANAND VENKATESH.J., sji CRL.O.P(MD)No.6050 of 2020 16.12.2024 36/36 https://www.mhc.tn.gov.in/judis