Madras High Court
Jason Samuel … vs State Represented By on 15 March, 2023
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
Crl.O.P.Nos.22143 and 22145 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.03.2023
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
Crl.O.P.Nos.22143 and 22145 of 2022
and
Crl.M.P.Nos.14265 and 14268 of 2022
Jason Samuel …Petitioner in both Crl.O.Ps
Vs.
State represented by
The Deputy Director,
Industrial Safety and Health,
Hosur. …Respondent in both Crl.O.Ps
COMMON PRAYER: Criminal Original Petitions are filed under Section
482 of the Code of Criminal Procedure, to call for the records in STC
Nos.1535 and 1533 of 2022 on the file of the Chief Judicial Magistrate,
Krishnagiri and quash the proceedings.
In both Crl.O.Ps
For Petitioner : Mr.A.Ramesh, Senior Counsel
for Mr.R.Ashwin
For Respondent : Mr.Leonard Arul Joseph Selvam
Government Advocate (Crl.Side)
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Crl.O.P.Nos.22143 and 22145 of 2022
COMMON ORDER
These Criminal Original Petitions have been filed calling for the records in STC Nos.1533 and 1535 of 2022, on the file of the Chief Judicial Magistrate, Krishnagiri and to quash the proceedings.
2. The case in S.T.C.No.1535 of 2022 was initiated against the petitioner for violation of Section 41 of Factories Act read with Rule 61E, F and punishable under Section 92 of Factories Act. The case of the respondent/complainant in brief as follows:
On 30.03.2022, one Sabeena, The Deputy Director, Industrial Health and Safety Officer, undertook an inspection in the petitioner's factory and found that the petitioner had contravened S.41 r/w. Rules 61E & 61F of The Factories Act, 1948 and TN Factories Rules,1950. Therefore gave a complaint against the petitioner, as he was the responsible person for the premises. The incidents which gave rise to the aforesaid violations are as follows:Page 2 of 13
https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.22143 and 22145 of 2022
1.Incident: On 03.10.2021, an employee named one A.Vignesh while trying to move the canister sub assembly, got into a major accident where he got his right index finger’s first phalanx amputated by the machine.
Cause: Failure to mark safe distance in the Magazzine Floor layout; Wrong approach in grabbing the electrical wiring duct cover with bare hands.
Violation: Section 41 r/w Rules 61E & 61F of The Factories Act, 1948 and TN Factories Rules,1950.
2.Incident: On 22.01.2022, employee named one A. Alex, when he tried to correct the Split Bush using his hands, while the machine was still running, the split bush pressing ram got released as the machine sensed the part presence sensor component, in result the employee got his right index finger nearly amputated at the middle phalanx with absent vascularity.
Cause: Non-maintenance of safety door guard of the machinery and Failure to implant the Interlocking Mechanism in the machinery. Violation: Section 41 r/w Rules 61E & 61F of The Factories Act, 1948 and TN Factories Rules,1950.
3.Incident: On 17.02.2022, employee named one R. Srinivas while trying to lift a bin weighing about 40 kg from the height of about 4 feet, got his left leg's thumb injured as the bin slipped from his hands. Cause: Wrong approach in handling the bin. Page 3 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.22143 and 22145 of 2022 Violation: Section 41 r/w Rules 61E & 61F of The Factories Act, 1948 and TN Factories Rules,1950.
3. The case in S.T.C.No.1533 of 2022 was initiated against the petitioner for violation of Section 41 of Factories Act read with Rule 61 D, E, F and punishable under Section 92 of Factories Act. The case of the respondent/complainant in brief as follows:
1.Incident: On 26.02.2022, employee named one B. Asarudheen who was incharge of test driving the vehicle got into an accident during the course of employment and got his left leg injured with ligament tear.
Cause: Ignorance in removing the sludge accumulation in the test track regularly, Failure to relay the track. Insufficient no.s of speed breakers.
Violations: S.41 r/w. Rule 61D of The Factories Act, 1948 and TN Factories Rules,1950
2.Incident: On 12.03.2022, employee named one R. Sathiya Raj who was working as a paint mixing operator got into an accident while trying to get the nitrogen gas cylinder in a trolley, when the trolley got tilted and the cylinder fell upon the employee thereby injuring his right leg middle finger.
Page 4 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.22143 and 22145 of 2022 Cause: Improper wheels in trolley.
Violations: S.41 r/w Rules 61E & 61F of The Factories Act, 1948 and TN Factories Rules,1950.
4. Further, the common reason for all the above incidents in both the cases also includes, the work done without the presence of supervisor and failure on the part of the management to give proper training to the employees for handling machineries.
5. Both the complaints are challenged by the learned Senior Counsel for the petitioner on the grounds of
(i) Limitation.
(ii) The complaint does not refer about the show cause notice and the reply given to the show cause notice and therefore, it is apparent that there was non application of mind while filing the complaint.
6. It is the submission of the learned Senior Counsel for the petitioner that as per Section 106 of Factories Act, 1948, no Court shall take Page 5 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.22143 and 22145 of 2022 cognizance of any offence punishable under this Act unless complaint thereof is made within three months from the date on which the alleged commission of the offence came to the knowledge of an Inspector. It is his further submission that in all five incidents for which the case is instituted, the complaint had been filed beyond the period of three months from the date of knowledge of the Inspector of the commission of offences. The show cause notice was replied with elaborate reasons, the reply was summarily rejected without any reasons for rejection. Thus, the learned counsel for the petitioner submitted that the prosecution cannot be continued for the aforesaid reasons and thus prayed for quashment of proceedings.
7. In support of his submissions, he relied upon the Judgment of the Hon'ble Supreme Court of India in 2009 (10) SCC 552 in the case of Union of India and others Vs A.K.Pandey, for the preposition, as to how to interpret a provision - whether mandatory or directory. He relied upon the common order of this Court dated 27.05.2022, in Crl.O.P.Nos.6714 and 6826 of 2018 and W.P.No.4529 of 2018 for the preposition that failure to Page 6 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.22143 and 22145 of 2022 refer to the show cause notice and reply to show cause notice, in the complaint shows the non application of mind and therefore, the prosecution is impermissible. The Judgment reported in 2004 5 SCC 568 in the case of “State of Orissa Vs Dhaniram Luhar is relied for the proposition that reason is life line for every decision and without the same, the decision become lifeless.
8. In response, the learned Government Advocate (Crl.Side) submitted that the Trial is yet to be commenced in these cases. The complaint allegations clearly make out commission of offences by the petitioner and thus, he prayed for dismissal of this petition.
9. Considered the rival submission and perused the records.
10. Section 106 of the Factories Act, 1948 reads as follows, “ Limitation of prosecutions: No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on Page 7 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.22143 and 22145 of 2022 which the alleged commission of the offence came to the knowledge of an Inspector.” It makes it clear that if a complaint is filed beyond the period of three months from the date of the knowledge of the Inspector about the commission of office, no Court shall take cognizance of the offence punishable under the Factories Act.
11. The complaint in S.T.C.No.1535 of 2022 is filed. The details are as follows:-
Details A.Vignesh A.Alex R.Srinivas
Date of the minor 03.10.2021 22.01.2022 17.02.2022
accident
Date of Intimation 05.10.2021 24.01.2022 18.02.2022
(Form 18)
Date of Inspection 30.03.2022 30.03.2022 30.03.2022
Date of Show Cause 12.04.2022 12.04.2022 12.04.2022
Notice
Date of Reply Notice 20.04.2022 20.04.2022 20.04.2022
Date by which
Prosecution (Time 05.01.2022 24.04.2022 18.05.2022
Limit provided u/s 106
of Factories Act)
Prosecution when 23.06.2022 23.06.2022 23.06.2022
initiated (T.O.F on (T.O.F on (T.O.F on
24.06.2022) 24.06.2022) 24.06.2022)
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Crl.O.P.Nos.22143 and 22145 of 2022
12. The complaint in S.T.C.No.1533 of 2022 is filed. The details are as follows:-
Details B.Asarudheen R.Sathiyaraj
Date of accident 26.02.2022 12.03.2022
Date of Intimation 28.02.2022 14.03.2022
(Form 18)
Date of Inspection 30.03.2022 30.03.2022
Date of Show Cause Notice 12.04.2022 12.04.2022
Date of Reply Notice 20.04.2022 20.04.2022
Date by which Prosecution
(Time Limit provided u/s 106 of 28.05.2022 14.06.2022
Factories Act)
Prosecution when initiated 23.06.2022 23.06.2022
(T.O.F on 24.06.2022) (T.O.F on 24.06.2022)
13. From the aforesaid chart, it is clear that the complaint was filed only on 23.06.2022 beyond the period of three months. Therefore, it is apparent that taking cognizance of the offence is barred by limitation under Section 106 of Factories Act and the Court should not have taken cognizance of the offences against the petitioner. Page 9 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.22143 and 22145 of 2022
14. The other contention of the learned counsel for the petitioner is that despite giving elaborate reply, the reply was not considered and that was not mentioned in the complaint. In the complaint allegations in both the cases, there is nothing stated about the show cause notice issued and the reply submitted by the petitioner, though annexure to the complaint refers about the show cause notice.
15. We have seen from the common order of this Court in Crl.O.P.Nos.6714 and 6826 of 2018 and W.P.No.4529 of 2018 dated 27.05.2022, and several other orders that failure to refer to the show cause notice and reply to the show cause notice manifest non application of mind in filing the complaint and therefore, complaint is vitiated on account of total non application of mind.
16. The rejection order passed after receiving the reply notice reads as follows:-
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17. This rejection is non reasoned and non speaking order. It is the submission of the learned counsel for the petitioner that because of the fact that this order is a non speaking order and non reasoned order, there was no possibility of filing appeal challenging this order.
18. We have already from seen the Judgment reported in 2004 5 SCC 568 in the case of “State of Orissa Vs Dhaniram Luhar that unless the conclusion is supported by reason, the conclusion is lifeless and failure to give reason amounts to denial of justice.
19. Thus, for the reasons aforesaid, this Court finds that taking cognizance of the offence barred by limitation is against the law. Failure to refer the show cause notice and reply to show cause notice shows non application of mind. The continuance of proceedings is an abuse of process of law.
Page 11 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.22143 and 22145 of 2022
20. In view of the above, the proceedings in S.T.C.No.1535 of 2022 and in S.T.C.No.1533 of 2022, on the file of the Chief Judicial Magistrate, Krishnagiri are hereby quashed. Accordingly, these Criminal Original Petitions are allowed. Consequently, connected Miscellaneous petitions are closed.
15.03.2023 mn Index:Yes/No Speaking Order: Yes/No To
1. The Deputy Director, Industrial Safety and Health, Hosur.
2. The Public Prosecutor, High Court, Madras.
Page 12 of 13 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.22143 and 22145 of 2022 G.CHANDRASEKHARAN.J., mn Crl.O.P.Nos.22143 and 22145 of 2022 and Crl.M.P.Nos.14265 and 14268 of 2022 15.03.2023 Page 13 of 13 https://www.mhc.tn.gov.in/judis