Karnataka High Court
Patrick George Yadauga vs The State Of Karnataka on 22 July, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22nd DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL REVISION PETITION NO.2225/2012
BETWEEN:
MR. PATRICK GEORGE YADAUGA
SENIOR VICE PRESIDENT (OPERATIONS)
& DIRECTOR
M/S. HINDUSTAN COCA-COLA BEVERAGES PVT. LTD.,
ORCHID CENTRE-3RD FLOOR,
DLF GOLF COURSE ROAD
SECTOR-53,
GURGAON-122001.
(THE DESIGNATION AND THE ADDRESS
OF THE PETITIONER
IS WRONGLY SHOWN IN C.C.NO.684/2012
AS BELOW
HENCE, THE CORRECT DESIGNATION &
ADDRESS IS SHOWN)
MR. PATRICK GEORGE YADAUGA
OCCUPIER
M/S. HINDUSTAN COCA-COLA BEVERAGES PVT. LTD.,
HIREBAGANAL VILLAGE,
TALUK & DISTRICT:KOPPAL.
...PETITIONER
(BY SRI: HARSH DESAI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
AT THE INSTANCE OF SRI. S.R. RAVINDRA
DEPUTY DIRECTOR OF FACTORIES
2
BELLARY DIVISION, BELLARY,
(AN INSPECTOR APPOINTED UNDER SECTION 8(1)
OF THE FACTORIES ACT, 1948)
...RESPONDENT
(BY SMT. GIRIJA HIREMATH, HCGP)
------
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C., TO SET ASIDE THE ENTIRE
PROCEEDINGS INITIATED BY THE RESPONDENT IN C.C.
NO.684/2012 PENDING BEFORE THE CIVIL JUDGE & JMFC
COURT, KOPPAL, CULMINATING IN THE ORDER DATED
01.09.2012 FOR THE OFFENCES PUNISHABLE UNDER SECTION
92 OF THE FACTORIES ACT, THE CERTIFIED COPY OF THE SAME
IS PRODUCED AS ANNEXURE-A, IN THE INTEREST OF JUSTICE
& EQUITY.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY THROUGH VIDEO
CONFERENCING, THIS COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the petitioner, who is arrayed as accused No.1 before the trial court with a prayer to set aside the entire proceedings initiated by respondent against him in C.C.No.684/2012 pending before the Civil Judge & JMFC, Koppal.
2. Factual matrix of the case for consideration is that the petitioner is one of the Director of M/s. Hindustan Coco-Cola Beverages Pvt. Ltd., Gurgaon, a company registered under the Companies Act, 1956 having its registered office at New Delhi. The said company is 3 engaged in the business of manufacturing, distribution and selling of various kinds of beverages, fruit- drinks and packaged drinking water under the brand names inter alia- Thumps Up, Fanta, Maaza, Limca, Sprite, Coca-Cola, Kinley Water and Soda. The petitioner functions entirely from his corporate office at Gurgaon, (Haryana) Office. There are more than 20 manufacturing units country wide and two of its units are in Karnataka. One is at Bidadi and the other at Koppal managed by Factory Managers. The petitioner visits the units whenever need arises.
3. It is further contended that the company gave a contract work order on 8th March 2012 to M/s. COTMAC Pvt. Limited, Hospet to carry out repairs and rectification of Air conditioners installed in the factory situated at Koppal. Earlier on many occasions said M/s. COTMAC Pvt. Ltd., Hospet, had carried out similar activity in the said factory.
4. It is contended that on 04.04.2012, prior to issuance of work permit system and before briefing about safety instructions to the contractor's supervisor, without the knowledge of the Factory Manager, the contract workmen 4 of M/s. COTMAC Pvt. Ltd., namely "Dadapeer" and "Yaseen" on their own went over the false ceiling of PET Bottle Filling Hall of the petitioner company. When they were in the process of visual inspection of Air-conditioner fixed to the eastern side wall of the production office, in that process, one of the workmen viz., "Mr. Yaseen" lost balance and stepped onto the false ceiling and thereby fell into PET production filling hall. He sustained grievous injury and was taken to the hospital. Mr.Dadapeer who was the Mechanic/Supervisor of M/s. COTMAC Pvt. Ltd., had bought Yaseen to work under him. The negligent act of the contract workmen of M/s. COTMAC Pvt. Ltd., was purely and solely responsible for the said accident. The company has absolutely no direct role in either allocation or control of workman Yaseen's work.
5. The company informed the accident to the Police Sub- Inspector, Munirabad, Koppal on 07.04.2012. The respondent- Factory Inspector visited the spot and gave a show-cause notice to the company on 13.06.2012 alleging contravention of Rule 79-A(b) of The Karnataka Factories Rules, 1969(for short hereinafter referred as 'Rules', 1969) 5 and called upon the petitioner as to why legal action should not be instituted against them. The petitioner submitted detailed reply to the show-cause notice. But the respondent instituted the criminal prosecution against the petitioner(Occupier) and Manager by filing a complaint under section 200 of The Code of Criminal Procedure, 1973 (for short hereinafter referred as 'Cr.P.C'). before the Jurisdictional Magistrate on 30.06.2012 for the offences punishable under section 92 of the Factories Act, 1948(for short hereinafter referred as 'Act, 1948'). The learned Magistrate by order dated 02.07.2012 issued summons to the petitioner. It is further contended that on 03.08.2012, learned counsel for the petitioner submitted an application under section 205 Cr.P.C. seeking permanent exemption from the proceedings. The said application was allowed and subsequently, accused No.2 was released on bail. Then on 01.09.2012, learned counsel for the petitioner brought to the notice of court about the exemption already granted to the petitioner on 03.08.2012, but the learned Magistrate issued non-bailable warrant against the petitioner. Hence, 6 this petition is filed with a prayer to quash the impugned proceedings.
6. Heard Sri. Harsh Desai, learned counsel for the petitioner and Smt. Girija Hiremath, learned HCGP appearing for the respondent-State.
7. The learned counsel for the petitioner argued that there is no specific allegation against the petitioner. Two workers proceeded to the spot without informing the Factory Manager or the other employees of the company and even before work allocation and safety work permit sign off instructions was given by the Executive of the company, the incident occured. It is wholly on account of the negligence attributable to workmen "Dadapeer" and "Yaseen". The petitioner was not present in the factory premises. The responsibility is entrusted to the factory manager. There is not even a whisper as to how the petitioner got saddled with criminal liability for alleged violation of the Rules. Respondent ought to have enquired the Directors of the company. It is further argued that the complaint was mechanically initiated. Learned counsel argued that the petitioner is one of the Director, he is in no 7 way connected with the day-to-day affairs of the company. Learned Magistrate failed to follow the procedure contemplated under law in issuing notice to the petitioner. The order sheet demonstrates that the learned Magistrate has not taken actual note of the alleged offence. Learned Magistrate has casually stated that there is contravention of section 92 of the Act, which is cognizable. But there is no contravention of said section. The factory has got all arrangements such as ambulance and safety measures. Learned counsel argued that infact entire expenses for treatment of said Yaseen was met by the company. The mode of taking cognizance is not correct. Learned counsel argued that section 107 of the Act, 1948 provides for appeal, but no such opportunity is given by passing an order before instituting a complaint which is bad in law. This court earlier quashed the proceedings in such cases. There is no proper sanction obtained under section 105 of the Factories Act. The complaint filed by the respondent without arraying the company as an accused is not maintainable. Learned counsel argued that on reading the complaint, it does not disclose offence against the 8 petitioner. With these main contentions, learned counsel prayed to set aside the proceeding against the petitioner. In support of his arguments, he relied upon the following decisions:-
(1). INSPECTOR OF FACTORIES, VELLORE v. SHOWA ENGINEERING LTD., SHOLINGHUR, 2007 (4) LLN 828, dated.
04.07.2007 (2). L. GANESH v. T. SOLAIPPAN, CRL.O.P.NO.27835 & 27838/2014 and MP Nos.1, 1 of 2014, dated 19.08.2019 (3) Mr.MAHENDRA KARLE & ANOTHER v. THE ASSISTANT DIRECTOR OF FACTORIES, WRIT PETITION NOS.52870-52871/2015(GM- RES) C/W WRIT PETITION NOS.52868-52869 OF 2015 (GM-RES) (PARAGRAPHS 12, 17, 18 AND 19), dated 15.09.2018
4. P P UPADHYA & ANOTHER v. THE STATE OF KARNATAKA, CRIMINAL PETITION NO.2167 OF 2014, dated 28.01.2020.
5. MR.MOHAMMED AZEEZ & ANOTHER v. STATE OF KARNATAKA, CRL.P.NO.2570 OF 2021 C/W CRL.P.NO.2594/2021, dated 10.08.2021.
6. NATIONAL INSURANCE COMPANY.
LIMITED., v. PRANAY SETHI AND OTHERS, (2017) 16 SCC 680 (PARAS 16 TO 20), dated 31.10.2017.
7. DR. SHAH FAESAL AND OTHERS v.
UNION OF INDIA AND ANOTHER, (2020) 4 SCC 1) (PARAS 27 - 32), dated 2.03.2020 9
8. OFFICIAL LIQUIDATOR v. DAYANAND AND OTHERS, (2008) 10 SCC 1 (PARA 90), dated 4.11.2008.
9. DIVISIONAL CONTROLLER, KSRTC v.
MAHADEVA SHETTY AND ANOTHER., (2003) 7 SCC 197 (PARA 23), dated 31.07.2003.
10. UNION OF INDIA AND ANOTHER v.
RAGHUBIR SINGH(DEAD) BY LRS.ETC. (1989) 2 SCC 754 (PARA 27), dated 16.05.1989.
11. MEHMOOD UL REHMAN v. KHAZIR MOHAMMAD TUNDA AND OTHERS, (2015) 12 SCC 420 (PARA 20 AND 21), dated 31.03.2015.
12. PEPSI FOODS LTD. AND ANOTHER, v. SPECIAL JUDICIAL MAGISTRATE AND OTHERS,(1998) 5 SCC 749(PARA 28), dated 04.11.1997.
13. STATE OF GUJARAT v. AFROZ MOHAMMED HASANFATTA, (2019) 20 SCC 539,(PARA 14-24), dated 05.02.2020.
14. PRADEEP S. WODEYAR v. STATE OF KARNATAKA, 2021 SCC ONLINE SC 1140(PARA 75 TO 81), dated 29.11.2021
8. Against this, learned HCGP argued that petitioner's contention is not tenable. Learned Magistrate has rightly taken cognizance. At this stage, such proceedings cannot be quashed. The trial court has followed the proper procedure. Therefore, the order of taking cognizance and issuance of summons by the trial court is just and proper. The contention of the petitioner is the defence which he 10 has to take during trial of the case, but not at this stage. The proceedings cannot be quashed. Hence, prayed to reject the petition.
9. I have perused the complaint, other materials and also decision relied by the petitioner's counsel.
10. From the above, the points that arise for consideration of this court are:-
1. Whether the company shall be arrayed as an accused for initiating criminal proceedings in this case?
2. Whether the cognizance taken by the learned JMFC is bad in law?
3. Whether the petitioner-accused who is exempted from appearance before the trial court only on the first day of appearance is deemed to have been exempted permanently during subsequent stages of the proceedings?
4. Whether the complainant before instituting a criminal case against the occupier for contravention of sections 7-A(1), 32(c) of Factories Act, 1948 and provisions of Rule 84 and 79-A(b) of Karnataka Factories 11 Rules, 1969, is required to pass an order on the reply submitted to show-cause notice so as to enable the occupier to file an appeal under section 107 of the Factories Act, 1948?
My answers to the above points are as under for the reasons given below:
Point No.1- Whether the company shall be arrayed as an accused for initiating criminal proceedings?
11. This contention need not detain me any longer in view of the judgment of the Hon'ble Supreme Court in J.K. Industries Ltd. and others v. Chief Inspector Of Factories and Boilers and Others, (1996) 6 SCC 665, wherein it is held that the company under the Factories Act need not be made as an accused as there is no provision under the Factories Act akin to Negotiable Instruments Act, Equal Remuneration Act, Payment of Gratuity Act, Payment of Wages Act and Minimum Wages Act. Here the Director is the Occupier and occupier is the representative of the company. It is held at Paras 40 and 62 as under:
40. In keeping with the aim and object of the Act which is essentially to safeguard the interests of workers, stop their exploitation, and take care of their safety, hygiene and welfare at their place of 12 work, numerous restrictions have been enacted in public interest in the Act. Providing restrictions in a Statute would be a meaningless formality unless the statute also contains a provision for penalty for the breach of the same. No restriction can be effective unless there is some sanction compelling its observance and a provision for imposition of penalty for breach of the obligations under the Act or the rules made thereunder is a concomitant and necessary incidence of the restrictions. Such a provision is contained in section 92 of the Act, which contains a general provision for penalties for offences under the Act for which no express provision has been made elsewhere and seeks to lay down uniform penalty for all or any of the offences committed under the Act. The offences under the Act consist of contravention of (1) any provision of the Act; (2) any rules framed thereunder; and (3) any order in writing made thereunder. It comprises both acts of omission and commission. The persons punishable under the Section are occupiers and managers, irrespective of the question as to who the actual offender is. The provision, is in consonance with the scheme of the Act to reach out to those who have the ultimate control over the affairs of the factory to see that the requirements for safety and welfare of the employees are fully and properly carried out besides carrying out various duties and obligations under the Act. 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. The fact that the notified/identified director is ignorant about the 'management' of the factory which has been entrusted to a manager or some other employee and is himself not responsible for the contravention cannot absolve him of his liability.
The identified / notified director is held vicariously liable for the contravention of the provisions of the Act, the rules made thereunder or of any order 13 made in writing under it for the offender company, which is the occupier of the factory.
62. To sum up our conclusions are :
(1) In the case of a company, which owns a factory, it is only one of the directors of the company who can be notified as the occupier of the factory for the purposes of the Act and the company cannot nominate any other employee to be the occupier of the factory;
(2) Where the company fails to nominate one of its directors as the occupier of the factory, the Inspector of Factories shall be at liberty to proceed against any one of the directors of the company, treating him as the deemed occupier of the factory, for prosecution and punishment in case of any breach or contravention of the provisions of the Act or for offences committed under the Act.
(3) Proviso (ii) to Section 2(n) of the Act is intra vires the substantive provision of Section 2(n) of the Act;
(4) Proviso (ii) to Section 2(n) is constitutionally valid and is not ultra-vires Articles 14, 19(1)(g) and 21 of the Constitution of India;
(5) The law laid down by the High Courts of Bombay, Orissa, Karnataka, Calcutta, Guwahati and Madras is not the correct law and the contrary view expressed by the High Courts of Allahabad, Madhya Pradesh, Rajasthan and Patna is the correct enunciation of law in regard to the ambit and scope of proviso (ii) to Section 2(n) of the Act."
The Co-ordinate Bench of this Court in W.P.No.11451/2018(GM-RES), dated 06.12.2021 in the case of Mr. Yashihirao Horinouchi v. The Deputy Director Of Factories, Department Of Factories and Boilers, by referring to section 2(n) of the Act, 1948 held 14 that the Director of the company would be responsible for proper implication of the Act and the Occupier would be responsible for all such acts of the factory, when it is not disputed that the petitioner is the occupier of the Factory and as some allegations are made against the company for violation of the provisions of the Act and the petitioner who has the ultimate control of the affairs of the company, in view of the principles stated in J.K. Industries Pvt. Ltd., case supra, the company is not necessary to be impleaded as party for initiating the proceedings against the Manager along with Occupier. The learned Single Judge has referred to the decision rendered by the Hon'ble Supreme Court in the case of Aneeta Hada v. M/s. Godfather Travels & Tours Pvt. Ltd., AIR 2012 Supreme Court 2795 and discussed in detail as to how it is not applicable to the case instituted under the Act, 1948 in view of decision in J.K Industries supra.
In view of the above discussion, the argument of the petitioner's counsel that not arraying the company as party is fatal, is not tenable. Accordingly, point No.1 is answered in the negative.
15Point No.2: Whether the cognizance taken by the learned Magistrate is bad in law.
12. The word 'cognizance' or the word 'taking cognizance' are nowhere defined. The Hon'ble Apex Court in the case of R.R. Chari v. The State Of Uttarpradesh, AIR 1951 SC 207 held taking cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as the Magistrate, as such, applies his mind to the suspected commission of an offence and cognizance can be taken only if the allegations attract penal provision in the Enactment. Whether the Magistrate has taken cognizance of the offence or not will depend upon the circumstances of the particular case including the mode in which case is sought to be instituted and the nature of preliminary action taken, if any, by the magistrate. The cognizance means the Magistrate takes notice of the accusations and being satisfied that the allegations made in the complaint which constitute the offence, decide to initiate proceedings by registering the case. The court has to look into only averments in the complaint and the documents. Detailed reasonings are not at all necessary.
16
13. In this regard, it is useful to refer to the principles stated by the Hon'ble Supreme Court of India.
13.1. In Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others, (2015) 12 SCC 420 wherein at paras 20 and 21 is it held as under:-
"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. (1998) 5 SCC 749, to set in motion the process of criminal law against a person is a serious matter.
21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence".
Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected."
1713.2 In Pepsi Foods Ltd. And Another V. Special Judicial Magistrate and Others, (1998) 5 SCC 749, at para 28 it is held as under:-
"28. Summoning of an accused in a Criminal Case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
13.3. In State Of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539 at paras 14 to 24, it is held as under:-
"14. The charge-sheet was filed in Criminal Case No.47715/2014 on 18-08-2014 against the accused persons, namely, Sunil Agrawal and Ratan Agrawal. In the first charge-sheet, the respondent Afroz 18 Mohammad Hasanfatta (Afroz Hasanfatta) was referred to as a suspect. In the second supplementary charge-sheet filed on 15-11-2014 in Criminal Case No.62851/2014, the respondent- Afroz is arraigned as Accused 1 and Amit alias Bilal Haroon Gilani as Accused 2. In the second supplementary charge sheet, prosecution relies upon the statement of witnesses as well as on certain bank transactions as to flow of money into the account of the respondent Afroz Hasanfatta and his Company Nile Trading Corporation. The order of taking cognizance of the second supplementary charge-sheet and issuance of summons to the respondent Afroz Hasanfatta reads as under:-
"I take in consideration charge sheet/complaint for the offence of Sections 420, 465, 467, 468 IPC, etc. Summons to be issued against the accused."
15. The first and foremost contention of the respondent-accused is that summoning an accused is a serious matter and the summoning order must reflect that the Magistrate has applied his mind to the facts of the case and the law applicable thereto and in the present case, the order for issuance of process without recording reasons was rightly set aside by the High Court. In support of their contention that the summoning order must record reasons showing application of mind, reliance was placed upon Pepsi Foods Ltd.(1998)5 SCC 749. The second limb of submission of the learned senior counsel appearing for the respondent-accused is that there has to be an order indicating the application of mind by the Magistrate as to the satisfaction that there are sufficient grounds to proceed against the accused irrespective of the fact that whether it is a charge sheet by the police or a private complaint.
16. It is well settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the 19 evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused. Reliance was placed upon Bhushan Kumar v. State (NCT of Delhi) (2012) 5 SCC 424, wherein it was held as under: (SCC pp. 428-29, PARAS 11-
13) "11. In Chief Enforcement Officer v.
Videocon International Ltd. (2008) 2 SCC 492, (SCC p. 499, para 19) the expression "cognizance" was explained by this Court as "it merely means 'become aware of' and when used with reference to a court or a Judge, it connotes 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code. 20
12. A "summons" is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.
13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued."
17. After referring to Bhushan Kumar v. state (NCT of Delhi), (2012)5 SCC 424, Videocon International Limited(2008) 2 SCC 492, and other decisions, in Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420,it was held as under:-
"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing 21 process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate (1998)5 SCC (cri) 1400.to set in motion the process of criminal law against a person is a serious matter."
The above observations made in para 20 is in the context of taking cognizance of a complaint. As per definition under section 2(d) Cr.pc complaint does not include a police report.
18. The learned senior counsel appearing for the respondent- accused relied upon various judgments to contend that while taking cognizance, the court has to record the reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence. The learned senior counsel appearing on behalf of the respondent- accused relied upon judgments in the case of Pepsi Foods Ltd.(1998) 5 SCC 749, and Mehmood Ul Rehman(2015) 12 SCC 420 to contend that while taking cognizance, the Court has to record reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence. On the facts and circumstances of those cases, this Court held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. However, what needs to be understood is that those cases relate to issuance of process taking cognizance 22 of offences based on the complaint. Be it noted that as per the definition under Section 2(d) Cr.P.C, 'complaint' does not include a police report. Those cases do not relate to taking of cognizance upon a police report under Section 190(1)(b) Cr.P.C. Those cases relate to taking cognizance of offences based on the complaint. In fact, it was also observed in the case of Mehmood Ul Rehman (2015) 12 SCC 420 (at SCC p.430, para 21) that "under Section 190(1)(b) Cr.P.C., the Magistrate has the advantage of a police report; but under Section 190(1)(a) Cr.P.C., he has only a complaint before him. Hence, the code specifies that "a complaint of facts which constitutes an offence".
19. Section 190(1)(a) Cr.P.C. provides for cognizance of complaint. Section 190(1)(b) Cr.P.C. deals with taking cognizance of any offence on the basis of police report under Section 173(2) Cr.P.C. Complaint is defined in Section 2(d) Cr.P.C. which reads as under:-
"2. Definitions-(a)-(c)
(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
The procedure for taking cognizance upon complaint has been provided under Chapter XV - Complaints to Magistrates under Sections 200 to 203 Cr.P.C. A complaint filed before the Magistrate may be dismissed under Section 203 Cr.P.C. if the Magistrate is of the opinion that there is no sufficient ground for proceeding and in every such case, he shall briefly record his 23 reasons for so doing. If a complaint is not dismissed under Section 203 Cr.P.C., the Magistrate issues process under Section 204 Cr.P.C. Section 204 Cr.P.C. is in a separate chapter i.e. Chapter XVI - Commencement of Proceedings before Magistrates. A combined reading of Section 203 and Section 204 Cr.P.C. shows that for dismissal of a complaint, reasons should be recorded. The procedure for trial of warrant cases is provided in Chapter XIX - Trial of Warrant Cases by the Magistrates. Chapter XIX deals with two types of cases - A - Cases instituted on a police report and B - Cases instituted otherwise than on police report. In the present case, cognizance has been taken on the basis of police report.
20. In a case instituted on a police report, in warrant cases, under Section 239 Cr.P.C., upon considering the police report and the documents filed along with it under Section 173 Cr.P.C., the Magistrate after affording opportunity of hearing to both the accused and the prosecution, shall discharge the accused, if the Magistrate considers the charge against the accused to be groundless and record his reasons for so doing. Then comes Chapter XIX-C - Conclusion of trial - the Magistrate to rendering final judgment under Section 248 Cr.P.C. considering the various provisions and pointing out three stages of the case. Observing that there is no requirement of recording reasons for issuance of process under Section 204 Cr.P.C., in Raj Kumar Agarwal v. State of U.P. 1999 Cr.LJ 4101, Justice B.K. Rathi, the learned Single Judge of the Allahabad High Court held as under:(SCC Online All Paras 8-9) "8...As such there are three stages of a case. The first is under Section 204 Cr. P.C. at the time of issue of process, the second is under Section 239 Cr. P.C. before framing of 24 the charge and the third is after recording the entire evidence of the prosecution and the defence. The question is whether the Magistrate is required to scrutinise the evidence at all the three stages and record reasons of his satisfaction. If this view is taken, it will make speedy disposal a dream. In my opinion the consideration of merits and evidence at all the three stages is different. At the stage of issue of process under Section 204 Cr. P.C. detailed enquiry regarding the merit and demerit of the cases is not required. The fact that after investigation of the case, the police has submitted the charge sheet, may be considered as sufficient ground for proceeding at the stage of issue of process under Section 204 Cr. PC., however subject to the condition that at this stage the Magistrate should examine whether the complaint is barred under any law,.. At the stage of Section 204 Cr. P.C. if the complaint is not found barred under any law, the evidence is not required to be considered nor the reasons are required to be recorded. At the stage of charge under Section 239 or 240 Cr. P.C. the evidence may be considered very briefly, though at that stage also, the Magistrate is not required to meticulously examine and to evaluate the evidence and to record detailed reasons.
"9.A bare reading of Sections 203 and 204 Cr.P.C. shows that Section 203 Cr.P.C. requires that reasons should be recorded for the dismissal of the complaint. Contrary to it, there is no such' requirement under Section 204 Cr.P.C. Therefore, the order for issue of process in this case without recording reasons, does not suffer from any illegality."([emphasis supplied) 25 We fully endorse the above view taken by the learned Judge.
21. In para (21) of Mehmood Ul Rehman,(2015) 12 SSC 420, this Court has made a fine distinction between taking cognizance based upon charge sheet filed by the police under Section 190(1)(b) Cr.P.C. and a private complaint under Section 190(1)(a) Cr.P.C. and held as under:-
"21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)( c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected."
22. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient ground for proceeding.."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is " there is ground for presuming that the accused has committed an offence...". At the stage of taking cognizance of the offence based upon a police report and for issuance of 26 summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.
23. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge-sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing 27 the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file.
24. In the present case, cognizance of the offence has been taken by taking into consideration the charge sheet filed by the police for the offence under Sections 420, 465, 467, 468, 471, 477A and 120-B IPC, the order for issuance of process without explicitly recording reasons for its satisfaction for issue of process does not suffer from any illegality.
13.4 In Pradeep S. Wodeyar v. State Of Karnataka (2021) SCC ONLINE SC 1140, at paras 76 to 81 it is held as under:-
76. The counsel for the appellant has contended that the order of the Special Judge taking cognizance has not sufficiently demonstrated application of mind to the material placed before him. To substantiate this contention, the appellant relied on the decisions in Pepsi Foods Ltd. v.
Special Judicial Magistrate (1998) 5 SCC 749, Fakhruddin Ahmad v. State of Uttaranchal(2008) 17 SCC 157, Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015) 12 SCC 420 , Sunil Bharti Mittal v. CBI (2015) 4 SCC 609 and Ravindranatha Bajpe v. Bangalore Special Economic Zone Ltd. (Criminal Appeal Nos.1047- 1048/2021). The respondent argued that this Court has made a distinction on application of mind by the judge for the purpose of taking cognizance based on a police report on the one hand and a private complaint under Section 200 CrPC on the other, and that the requirement of a demonstrable 28 application of mind in the latter case is higher. For this purpose, the counsel relied on this Court's decisions in Bhushan Kumar v. State (NCT of Delhi)(2012) 5 SCC 424 and State of Gujarat v. Afroz Mohammed Hasanafatta(2019) 20 SCC 539.
77. The decision of this Court in Pepsi Foods Ltd. (supra), arose out of the institution of a complaint filed against the appellants under Section 7 read with Section 16 of the Prevention of Food Adulteration Act 1964. The allegation in the complaint was that the appellants sold a bottle of beverage which was adulterated. After recording primary evidence, the Magistrate passed orders summoning the appellants. The appellants instituted proceedings before the High Court under Section 482 CrPC for quashing the summoning order and the proceedings. It was in this backdrop, that while adverting to the procedure envisaged in Chapter XV of the CrPC more particularly the provisions of Section 200, Justice DP Wadhwa speaking for a two judge Bench held:
"12...One of the modes by which a court can take cognizance of an offence is on filing of a complaint containing facts which constitutes such offence. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate (Sections 190 and 200 of the Code).
78. Having noticed that proceeding had been initiated on the basis of a complaint, this Court held:
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to 29 bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
79. On the facts, the Court held that the allegations against the appellants did not establish any offence under Section 7 of the Prevention of Food Adulteration Act and there was no basis in the complaint to make such allegation. Setting aside the order of the High Court, this Court accordingly quashed the complaint. The genesis of the decision in Pepsi Foods Ltd is founded on a complaint made to the PART C Magistrate upon which steps had been initiated pursuant to the provision of Section 200 of the CrPC.
80. In Sunil Bharti Mittal (supra), the case before this Court arose out of alleged irregularities in the grant of an additional Spectrum in 2002. The case was being monitored by this Court. The CBI registered a case and after completion of the investigation filed a charge-sheet in the court of the Special Judge. The CBI, among others, mentioned 30 three telecom companies as accused persons in respect of offences under Section 13(2) read with 13(1)(d) of the PC Act and allied offences. When the matter was taken up for the issuance of summons to the accused persons, the Special Judge while recording satisfaction that there was enough incriminating material to proceed against the accused named in the charge-sheet also found that three individuals, namely, the CMD, MD and Director of the three telecom companies were an alter ego of the respective companies. While taking cognizance of the cases, summons were issued not only to the accused in the charge-sheet but to the aforesaid three persons as well. Two of them moved this Court. Justice A K Sikri, while speaking for the three judge Bench, held that before taking cognizance of an offence, the Magistrate should have applied his mind to the case to satisfy himself that the allegations would constitute an offence:
"48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to PART C have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not."
81. Justice Sikri observed that while the Magistrate is empowered to issue process against 31 a person who has not been charge-sheeted, there has to be sufficient material in the police report showing his involvement. The Court held that no such exercise was carried out by the Special Judge and in its absence, the order summoning the appellants could not be sustained. The decision in Sunil Bharti Mittal (supra) arose out of a police report but clearly involved a situation where appellants had not been arraigned as accused in the charge-sheet. The Magistrate had issued summons to them merely treating them to be an alter ego of the company. This Court held that it was a wrong (and a 'reverse') application of the principle of alter ego and that the order summoning them could not be sustained."
14. In the light of these principles stated by Hon'ble Supreme Court, let me consider the legality and validity of the order of taking cognizance and issuance of summons by learned Magistrate in the instant case.
15. As stated earlier, a complaint came to be filed before the JMFC Court, Koppal under section 200 Cr.P.C. by the Deputy Director of Factories, Bellary Division, Bellary as a complainant under the Factories Act, 1948 and Rules, on 30.06.2012 against this petitioner who is the occupier and one Sri. Mouna Gurusami, who is the Factory Manager. The contents of written complaint presented in the Court shows that the accident occurred on 04.04.2012 at about 10.15 32 a.m. in the premises of the petitioner factory. One Sri. Yaseen, contract worker of M/s. Cotmac Pvt. Limited, Hospet who was engaged in assisting Sri. Dadapeer, Technician in repairing the Air conditioner installed to the production block of the factory spot on the false ceiling fell down from a height of 5mts onto the floor of the pet filling section and sustained grievous injuries. The complaint further shows that after receiving information from the Manager, HR, complainant, visited the factory, made an enquiry and investigation about the accident by examining the witnesses. He has also mentioned about the methodology followed in the inquiry and relied on documents connected with the serious accident. He also conducted spot inspection and found that the management of the factory has placed the contract vide work order dated 08.03.2012 on M/s. Cot Mac Pvt. Limited, Hospet for carrying out the compressor fixing and electrical spares fixing in Air Conditioners installed in the factory and infact said Dadapeer alongwith his helper Sri. Yaseen were standing on top of the edge of end wall of PET filling hall 33 and due to imbalance, he had stepped on the false ceiling of the said hall and fell down from the height of 5mts.
16. The complaint mentions that the accident spot is at production office of the petitioner. It is also found that those workers were not provided with fall arrestor/life line for the purpose of working from such a height. The personnel protective equipment such as PP life line for fall arrestor & retractable fall arrestor were not provided. Precautions and safe measures required to be taken were not taken. There is failure on the part of management of the factory in providing safety net to ensure safety of workers working at a height where the worker is likely to fall from such height. When the workers were required to work at such a height, all practicable measures such as adequate platform and scaffolding would have to be provided. Complaint alleges that there is lack of supervision which has resulted in serious accident. Hence, it is alleged that as the Occupier and the Manager have failed to foresee the hazard risk and provide safety and practicable measures to prevent any such accident. Therefore, it is alleged that there is contravention of 34 provision of Rule 84 of the Factories Rules, 1969 and section 7A(1) of Act, 1948. The provision of section 32(c) of the Act, 1948 for having not taken required measures for providing safety net and without issuing permit to work at height for the number of workers required to work at a height of around +5mts elevation, there is contravention of section 79-A(b) of the Rules, 1969. Complainant has also enclosed documents, names of four witnesses alongwith the written complaint. The complainant has enclosed Form No.17(notice of accident), investigation report, statement of witnesses recorded, letter written by the Factory Manager, the detailed accident investigation report-cum-show-cause notice dated 13.06.2012 and reply notice dated 26.06.2012, letter of sanction to prosecute and sanction granted by Directors of Factories.
17. The order sheet of the trial court dated 2.07.2012 reads as under:-
Dated 02.07.2012 Registered the case in P C R and put up Sd/-
JMFC, Koppal 35 Complainant Sri. S R Sridhar, Deputy Director of Factories, Bellary Division is present. The complainant is a public servant. perused the documents. Satisfied as to the complainant being public servant. The complaint is made in writing and the complainant being public servant has filed this complaint in discharge of his official duties. Therefore, there is no need to examine the complainant or record his sworn statement. Hence, acting under first proviso to section. 200 of Cr.P.C., there is no need to examine the complainant.
The complaint is filed for contravention of section 92 of Factories Act. The complainant alleges that an accident has occurred in the factory of the accused which is cognizable under section 92 of the Factories Act. At this stage, there are sufficient grounds to proceed against the accused under section 92 of the Factories Act. Register the case in C.C. Register against the accused.
Issue summons to the accused returnable by 03.08.2012.
JMFC., Koppal.
(Underlying by me) [
18. On perusing the above order, it is evident that the learned magistrate stated that the said complainant is a public servant. There is no need to examine the complainant or record his sworn statement. The trial court has clearly mentioned that it has perused the documents 36 filed by the complainant. The Court has further stated the allegation in the complaint shows cognisable offence. The order sheet shows that after going through the complaint documents, as there are sufficient grounds to proceed against the accused, the trial court directed to register the case against the accused in Criminal Case Register and issued summons. The trial court stated that as the complainant alleges that an accident has occurred in the factory of the accused, it is cognizable under section 92 of the Factories Act. Hence, the trial court order shows that only after satisfying itself that there is sufficient ground to proceed against the accused under section 92 of the Factories Act and issued summons.
19. Therefore, it is evident from the said order that the learned Magistrate after going through the complaint and perusing the documents is satisfied that there is contravention of provisions of Act, 1948 and Rules, 1969 and found that there are sufficient grounds to proceed for the offence, which is a cognizable offence and he has registered the case. Therefore, the contention of the 37 petitioner that the learned magistrate has not at all applied his mind before proceeding further has no basis at all.
20. The proposition of law stated in the decision relied by learned counsel for the petitioner in the case of Mehmood Ul Rehman V. Khazir Mohammad Tunda and Others, (2015) 12 SCC 420 is very well settled, but it will not help the petitioner. In that case, there was examination of the complainant on oath and other witnesses. It was a defamation case. But, here in this case, the complainant is a Government Official and he need not be examined under section 200 Cr.P.C. The learned magistrate has perused the complaint and other documents and taken cognizance. The Hon'ble Supreme Court in the above said case held that only when the complaint is dismissed, speaking order with proved reasons are required, but no formal or speaking order or reasoned orders are required at the stage of Sections 190/204 Cr.P.C., as evidenced from para
20. (underlining by me) 38 20.1. The next decision relied on by learned counsel is in the case of Pepsi Foods Ltd., and Another v. Special Judicial Magistrate and Others, (1998) 5 SCC 749 wherein it is held that the magistrate has to examine both oral and documentary evidence and even put questions to complaint and his witnesses. But here the case is filed by the Deputy Director of Factories who is a Government Servant. That case was under section 482 Cr.P.C. relating to quashing of proceedings under the Prevention of Food Adulteration Act, 1954. There was preliminary evidence recorded, but it is not the case on hand. On the other hand, the order of magistrate shows that he has perused the complaint and documents, satisfied about alleged offences before taking cognisance. Therefore, the decision rendered in Pepsi Foods will not help the petitioner. 20.2. The next decision relied by learned counsel is State of Gujarat V. Afroz Mohammed Hasnfatta, (2019) 20 SCC 539. That is the case of taking cognizance on the basis of police report and the Hon'ble Supreme Court held that strict standard of proof not required and the fact stated will have to be accepted as they appear on the very 39 face of it. The Hon'ble Supreme Court has set-aside the order of the High Court relating to issuance of summons and held that the High Court in exercise of power of revision could not have set-aside the issuance of summons by examining the merits of the matter and defence plea. When the satisfaction of the Magistrate to issue summons was based on the charge sheet and the materials i.e., the police report, the Hon'ble Supreme Court at para 14 to 24 and 51 to 54 discussed in detail as to what is prima-facie satisfaction of the Magistrate for issuance of summons and it is held that simply because of the order for issuing summons, the Magistrate need not explicity state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused for issuance of summons does not suffer from any illegality. The Hon'ble Supreme Court referred to its earlier judgments in Pepsi Foods Ltd., v. Special Judicial Magistrate, (1998) 5 SCC 749, Bhushan Kumar v. State (NCT OF DELHI), (2012) 5 SCC 424, Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 relied on by the petitioner and other decisions in Afroz Mohammed 40 Hasanfatta v. State Of Gujarat, 2017 SCC ONLINE GUJ 2468. It is held that the merits of the matter cannot be gone into and accused were directed to appear before the trial court.
(underlining by me) 20.3. In Pradeep S. Wodeyar v. State Of Karnataka, 2021 SCC ONLINE SC 1140, which arises out of the decision of Single Judge of this Court, where there was a petition filed for quashing the proceedings initiated in Spl.C.C.No.599/2015 for the offences punishable under sections 409 and 420 read with Section 120B IPC, Sections 21 and 23 read with sections 4(1) and 4(1) (A) of the Mines and Mineral (Development and Regulation) Act, 1957 and Rule 165 read with Rule 144 of the Karnataka Forest Rules, 1969. The said decision will not help the petitioner as facts and issues of that case are not applicable to the case on hand.
21. In the light of touchstone of the principles stated in the above referred decisions, the order of the magistrate taking cognizance is tested, it is evident that, the 41 cognizance taken by the learned magistrate is proper and legal. Accordingly, the point No.2 in answered in the negative.
Point No.3: Whether the petitioner-accused who is exempted from appearance before the trial court only on the first day of appearance is deemed to have been exempted permanently during subsequent stages of the proceedings?
22. In order to appreciate this contention, it is necessary to refer section 205 Cr.P.C. It reads as under:-
205. Magistrate may dispense with personal attendance of accused.
(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided."42
23. It is evident from the said section that the said provision empowers a magistrate issuing summons, may dispense with personal attendance of the accused. It also shows that the magistrate may direct the personal attendance of the accused at any stage of the proceedings. The personal appearance of the accused is the general rule and exemption from personal appearance may be granted in suitable cases depending upon the nature of case, the person required to appear and the stage of the case. Therefore, exemption from personal appearance under section 205 Cr.P.C. cannot be claimed by the accused as a matter of right. The said section gives discretion to the court to exempt a person, from personal appearance till such time his personal appearance was necessary for the trial of the case. Therefore the said power to grant exemption is a discretionary power depending upon the facts and circumstances of each case. The initial dispensation of the presence of the accused on valid reasons is not a ground for the accused to contend that he cannot be summoned subsequently during trial. 43
24. In the light of the above discussion, it is necessary to refer the relevant orders passed by trial court after taking cognizance and issuing summons.
24.1 The order sheets dated 03.08.2012 and 13.08.2012 reads as under:-
03.08.2012 State by APP A1 and A2 SS to accused issued served on supervisor A1 and A2 ab.
Vakalat for A1 and A2 filed by Sri. MGR from Hospet Bar alongwith 205 r.P.C. Application for both the accused. Adjourned for appearance, plea & bail call on 01.09.2012 24.2 13.08.2012 Sri UAM Adv. filed an advancement application alongwith bail appl. with enclosures.
Case advanced on board. Accused No.2 is present. Sri UAM/MGR advocate has filed bail application for the accused No.2.
Heard. Following order passed.
44
ORDER ON BAIL APPLICATION UNDER
SECTION 436 OF CR.P.C.
The offence u/s. 92 of Factories Act is bailable. Hence, accused No.2 is released on bail on personal bond of Rs.10,000/- along with one surety likesum.
Advocate Sri UAM/MGR has filed surety affidavit alongwith ROR & Copy of ID Card. One surety Sri. Hanamappa S/o. Hanamappa Hattiguddi Age:37 years, Occ:Agril, R/o. Chikkasullikeri, is present. He knows the accused No.2 and he is ready and willing to stand as surety to the accused.
Perused the document. Satisfied. Surety held sufficient and the same is accepted.
Accused No.2 and surety to give bond of Rs.10,000/-
For appearance of accused No.1 and for plea by 01.09.2012.
JMFC Koppal.
25. It is evident from the above order sheet, when both accused were directed to appear before court by issuance of summons, an application under section 205 Cr.P.C. was filed and the matter was adjourned to 01.09.2012. A date was given for their appearance. The case was advanced on 13.08.2012 by accused No.2 and only accused No.2 was ordered to be released on bail. Then again, the matter was adjourned for appearance of accused No.1 and for plea by 45 01.09.2012 and on 1.9.2012, the trial court passed the order as under:-
25.1.
1.9.2012 A2 absent filed EP by Advocate UAM A1 absent issue NBW for A-1 28.09.2012 Sd/-
26. Therefore from the above orders, it is crystal clear that no order is forthcoming as to the total exemption of the petitioner throughout the proceedings. On the other hand, the order-sheet indicates that only on a particular day, petitioner's presence was dispensed with and he was directed to appear on the next date of hearing. Therefore, the contention taken in this petition that the proceedings needs to be set-aside as it has culminated in passing an illegal order on 01.09.2012 is not tenable. The order of issuing NBW is perfectly legal. Accordingly, I answer point No.3 in the negative.
Point No.4: Whether the complainant before instituting a criminal case against the occupier for 46 contravention of sections 7-A(1), 32(c) of Factories Act, 1948 and provisions of Rule 84 and 79-A(b) of Karnataka Factories Rules, 1969, is required to pass an order on the reply submitted to show-cause notice so as to enable the occupier to file an appeal under section 107 of the Factories Act, 1948?
27. It is the argument of the learned counsel for the petitioner that the Deputy Director shall pass an order after issuing show-cause notice so as to enable the occupier or the manager to file an appeal provided under section 107 of the Factories Act and non-passing of such order is fatal for instituting the criminal proceedings.
28. In order to appreciate the argument, that there is a violation of provision of section 107 of Factories Act, 1948 in not passing order by the Deputy Director of Factories in this case and the proceedings required to be quashed, it is necessary to refer to section 107 of Factories Act, 1948. It reads as under:-
47
107. Appeals.--
(1) The manager of a factory on whom an order in writing by an Inspector has been served under the provisions of this Act or the occupier of the factory may, within thirty days of the service of the order, appeal against it to the prescribed authority, and such authority may, subject to rules made in this behalf by the State Government, confirm, modify or reverse the order.
(2) Subject to rules made in this behalf by the State Government (which may prescribe classes of appeals which shall not be heard with the aid of assessors), the appellate authority may, or if so required in the petition of appeal shall, hear the appeal with the aid of assessors, one of whom shall be appointed by the appellate authority and the other by such body representing the industry concerned as may be prescribed:
Provided that if no assessor is appointed by such body before the time fixed for hearing the appeal, or if the assessor so appointed fails to attend the hearing at such time, the appellate authority may, unless satisfied that the failure to attend is due to sufficient cause, proceed to hear the appeal without the aid of such assessor or, if it thinks fit, without the aid of any assessor.
(3) Subject to such rules as the State Government may make in this behalf and subject to such conditions as to partial compliance or the adoption of temporary measures as the appellate authority may in any case think fit to impose, the appellate authority may, if it thinks fit, suspend the order appealed against pending the decision of the appeal."48
29. It is evident from the above said section that when the Inspector has made an "order" in writing and served on the manager of the factory, within 30 days, the manager may prefer an appeal. There are only certain provisions in the Factories Act 1948, wherein the Inspector is required to pass an "order" in writing for breach of those provisions and Rules thereunder. The complaint alleges that there is contravention of section 7-A(1) and 32(c) of the Factories Act, 1948 and also contravention of Rule 84 and Rule 79-A
(b) of Karnataka Factories Rules, 1969. It is useful to refer those sections and rules.
30.Section 7-A of Factories Act reads as under:-
7-A. General duties of the occupier.--(1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.
(2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which such duty extends, shall include--
(a) the provisions and maintenance of plant and systems of work in the factory that are safe and without risks to health;
(b) the arrangements in the factory for ensuring safety and absence of risks to 49 health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work;
(d) the maintenance of all places of work in the factory in a condition that is safe and without risks to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risks;
(e) the provision, maintenance or monitoring of such working environment in the factory for the workers that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work."
(3) Except in such cases as may be prescribed, every occupier shall prepare, and, as often as may be appropriate, revise, a written statement of his general policy with respect to the health and safety of the workers at work and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision thereof to the notice of all the workers in such manner as may be prescribed.
Section 32 reads as under:-
32. Floors, stairs and means of access -In every factory--
(a) all floors, steps, stairs, passages and gangways shall be of sound construction 50 and properly maintained1[and shall be kept free from obstructions and substances likely to cause persons to slip], and where it is necessary to ensure safety, steps, stairs, passages and gangways shall be provided with substantial handrails ;
(b) there shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person is at any time required to work.
(c) when any person has to work at a height from where he is likely to fall, provision shall be made, so far as is reasonably practicable, by fencing or otherwise, to ensure the safety of the person so working.
Rule 79-A reads as under:-
79-A. Fragile roofs:- Provisions of crawling boards etc:- In any factory, no person shall be required to stand or pass over, or work, on or near any roof or ceiling covered with fragile material through which he is liable to fall, in case it breaks or gives way, a distance of more than three metres--
(a) Without the use of sufficient number of suitable ladders, duck ladders or crawling boards, which are securely supported, provided by the Occupier or manager for this purpose;
(b) Unless a permit to work on the fragile roof is issued to such person each time he is required to work thereon by an officer of the factory authorised for this purpose by the Occupier or Manager.51
Rule 84 reads as under:-
84. Methods of work- No process of work shall be carried on in any factory in such a manner as to cause risk of bodily injury.'
31. Therefore, on perusing said section 7-A, it is evident that the allegation in this case falls under section 7-A(2)
(c) and section 32(c) of Factories Act, 1948. Nowhere section 7-A(2)(c) or 32(c) states that the order is required to be passed by complainant before instituting the complaint for contravention of those sections. There are only few provisions which requires that an order is required to be passed by Deputy Director and said order is to be served on the manager of the factory. Such provisions are found in sections 15(3), 38(1), 39 and 40(2) of Factories Act. In this regard, the High Court of Andhra Pradesh in a decision reported in AIR 1964 Andhra Pradesh 232 in the case of Sri Kanyaka Parameshwari Salt Works Chatamatta Represented By Sri. K. Venkata Suryanarayana, Managing Partner V. The Chief Inspector Of Factories, Andhra Pradesh, Hyderabad and Another has held as under:- 52
(6) xxxxxxxxxxxx My attention has been invited to Ss.15(3), 38(1), 39 and 40(2) of the Factories Act. All these provisions speak of an order in writing by an Inspector and provide for its being served on the Manager of the Factory. It is, therefore, legitimate to infer that appeals, which section 107 (1) contemplates are appeals from the orders in writing by an Inspector served on the Manager of a factory under section 15(3), 38(1), 39 and 40(2) of the Act. No doubt, sections 16(3) and 44(2) also speak of an order in writing. But that order is to be made by the Chief Inspector himself. Besides, these sections do not in terms require that order to be served on the manager of the factory.
Thus the scope and phraseology of Sections 15(3) and 44(2) are quite distinct and markedly different from those of the other sections already adverted to and as I already indicated, the requisites of an appealable order mentioned in section 107 (1) entirely tally with those to be satisfied by orders under sections 15(3), 38(1), 39 and 40(2). It therefore, appears eminently reasonable to hold that it is only the orders passed by the Inspector under these sections that can be appealed against under section 107 (1). In the present case, no order was passed under any of these sections. Therefore, an appeal did not lie to the Chief Inspector under Section 107(1).
32. Therefore, on perusing the above decision, it is evident that for violation of only few sections, the order is required to be passed and served in the circumstances as referred above and the remedy against such an order is to 53 prefer an appeal under section 107 of the Act 1948. The order in writing is not required to be passed in regard to contravention of all the provisions of Act, 1948 and Rules, 1969. Therefore, the question of denial of right of appeal or the petitioner was deprived of opportunity to file an appeal does not arise. Complainant has issued investigation report-cum-show-cause notice after making inspection and inquiry. He has also stated how the contravention of certain provisions of Factories Act and Rules are made. The Inspector has sent the file seeking sanction for prosecution in view of limitation in filing the complaint and after getting sanction order by the competent authority, he instituted the complaint.
33. The learned counsel for the petitioner argued that the proceedings needs to be quashed for not passing order before instituting the proceedings on the reply sent to show-cause notice. In support of his contention, the petitioner's counsel relied on the decision of co-ordinate Bench of this Court in the case of Mr. Mohammed Azeez and Another v. State Of Karnataka in Crl.P.No.2570/2021 c/w Crl.P.No.2594/2021 dated 54 10.08.2021 and argued that the coordinate bench of this Court has taken such view. He relied on paras 5, 7, 8 and 9 which reads as under:-
5. It is the submission of the learned counsel for the petitioners Sri B.K.Prashanth that once the petitioners submitted their reply to the notice issued by the respondent, the latter ought to have passed an order either accepting or rejecting the reply, so that the petitioners can prefer an appeal as envisaged under Section 107 of the Factories Act in case they are aggrieved by the decision of the respondent. The criminal action initiated by the respondent is in violation of the principles of natural justice and for this reason the proceedings in these two criminal complaints lodged against the petitioners cannot be sustained. In support of his arguments, he places reliance on two judgments of this Court in the case of P.P.UPADHYA AND ANOTHER VS. STATE OF KARNATAKA [CRL.P.NO.2167/2014] and MAHENDRA KARLE VS.
ASSISTANT DIRECTOR OF FACTORIES [WRIT PETITION NO.52870/2015 AND CONNECTED MATTERS] and the judgment of the High Court of Madras in the case of L.GANDESH VS. STATE OF TAMIL NADU [CR.O.P.NOS.27835 AND 27838 OF 2014]. Therefore he argued for quashing the proceedings.
7. Section 92 of the Factories Act is a penal provision to take action against the occupier or the factory manager for contravention of the provisions of the Factories Act and Rule 14(c) of the Factories Rules, 1969 enables the Inspector to initiate prosecution.
8. In the case on hand, once the Senior Assistant Director of Factories issued a notice to the petitioners requiring them to show cause in writing within seven days and thereafter the 55 petitioners issued a reply showing cause for the notice issued to them, it was obligatory on the part of the respondent to have passed an order either accepting or rejecting the reply submitted by the petitioners. This is necessary because Section 107 of the Factories Act enables them to prefer an appeal if at all they are aggrieved by the order passed by the respondent. Though there is no specific provision under the Factories Act that the concerned authority should pass an order to the reply submitted by the occupier or the factory manager, principles of natural justice require such an order to be passed, or otherwise the purpose of giving right to the occupier or the factory manager to prefer an appeal under Section 107 of the Factories Act becomes redundant.
9. What can be noticed in these two petitions is that, without resorting to this procedure, the Senior Assistant Director of Factories directly initiated prosecution against the petitioners. Therefore their prosecution cannot be sustained. The same view has been taken by the Co-ordinate Bench of this Court and the High Court of Madras in the cases stated supra.' (underlining by me) On perusing the said decision, it is evident, the said petition is filed under section 482 Cr.p.c. to quash the proceedings. There is nothing to show that the action was initiated for contravention of which section of Factories Act or Rules, wherein the order is required to be passed. Relying on another decision of this court in P.P. Upadhya and Mr. Mahendra Karle supra, an order was passed 56 quashing the proceedings under section 482 Cr.P.C and giving liberty to the complainant to take action afresh in accordance with law. The learned Single Judge has clearly stated in that decision that there is no specific provision under the Factories Act, that the concerned authority should pass an order to the reply submitted by the occupier or the manager. In the case on hand, there is no question of denying of principles of natural justice by the complainant. He has visited the premises, inspected the spot, collected the relevant documents from factory, recorded the statement of the witnesses of the factory, then, after satisfying that there is an offence made under section 92 of the Factories Act, instituted a complaint. There is no question of denial of natural justice in this case. Therefore, that decision will not help the petitioner in any way.
34. Learned counsel also relied on another decision of coordinate bench Judgment of this Court in the case of P.P. Upadhya and Another v. The State of Karnataka in Crl.P.No.2167/2014 dated 28.01.2020, wherein a similar view as in Mohammed Aziz case has been taken 57 and proceedings are quashed. At paras 10 and 11, it is observed as under:-
10. The respondent has not placed any material to show that the complainant - Deputy Director of Factories had passed an order on receiving the reply from the petitioners on the show cause notice issued to them. The respondent/complainant being a public servant was under the obligation to pass an order considering the reply given by the petitioners to the show cause notice. But he has only forwarded the reply given by the petitioners to the Director of Factories and Boilers, Bengaluru and has sought for permission to initiate the legal action. Under these circumstances, it is evident that the complainant has directly initiated the legal action without passing an order on the reply given by the petitioners, as such, petitioners are deprived of opportunity to prefer appeal under Section 107 of the Factories Act.
11. When the action is initiated without considering the explanation offered by the petitioners, the initiation of such proceedings is opposed to law. As already stated above, the respondent should have passed an order in accordance with law, against which, an order of appeal is provided under Section 107 of the Factories act. Therefore, in lieu of non-
considering the explanation submitted by the management and initiation of legal action is detrimental to the interest of the petitioners, as the management has lost the right of appeal provided under the Statute. Hence, the initiation of legal action as ordered by the learned Magistrate cannot be sustained in law."
Relying on the judgment of Madras High Court reported in 2007 Online Madras 558 in the case of 58 Inspector of Factories, Vellore V. Showa Engineering Ltd, Sholinghur, the proceedings were quashed reserving liberty to the complainant to pass order on the reply to show-cause notice and proceed in accordance with law. It is evident from para 7 of the said judgment that the learned Government Public Prosecutor submitted that section 107 of the Factories Act is applicable only to specific sections i.e., sections 50, 39, 40, 48 and 87(a) of the Factories Act and there was no requirement of passing an order in writing as provided under section 107 of the Factories Act in respect of other Sections and Rules. But, the learned Single Judge has not discussed anything about this aspect and there is no finding about it. It is evident that the contravention in that case was under section 37(1) (b) (c) of the Act. Therefore, the facts and the principles stated in the above decision has no application to the case on hand.
35. The learned counsel also stated that similar view is taken by the co-ordinate bench of this Court in the case of Mr. Mahendra Karle and Another v. The Assistant Director of Factories in W.P.Nos.52870-52871/2015 c/w 59 W.P.Nos.52866-52869 of 2015, wherein the writ petitions were filed seeking quashing the proceedings. On perusing the said decision, it is evident that the action was initiated for violation of provisions of section 40(B) (1) (i) of the Factories Act, 1948. It is evident from para 10 of the judgment that the learned Judge of coordinate Bench held that there are no materials to arrive at any conclusion as to for what reasons the respondent decided to institute a criminal proceedings against the petitioner company. Here in the case on hand, there are sufficient materials and the same was also intimated to the petitioners before instituting the criminal proceedings. That decision has no application to the facts of this case. Therefore the decisions relied by the petitioner's counsel have no bearing on the question raised in this case regarding mandatory requirement of passing an order for violation of provisions of Act, 1948 and Rules, 1969 as alleged in this case.
36. The counsel for petitioner relied on decision in the case of Inspector of Factories, Vellore v. Showa Engineering Ltd., Sholinghur reported in 2007 (4) 60 L.L.N.828. The facts of that case are totally different and there is contravention of section 88 of Factories Act, which was regarding filing of the complaint before receipt of reply to the factory.
37. In the case of L. Ganesh v. T. Soaippan, reported in CRL.O.P.NO.27835 & 27838/2014 dated 19.08.2019, the same is under Rule 102 of the Tamil Nadu Factory Rules, 1950, which is on the question of limitation and there is nothing to show that the reply given by the company has not been considered. Therefore, relying on the judgment of K. Masthan Rao v. State, Rep. By Inspector of Factories, First Circle, Vellore reported in 2014 (3) MWN(Crl.) 86, the Court passed the said order, but, here it is not the case. Therefore, the decisions relied by the petitioner's counsel have no bearing on the point raised in this case regarding mandatory requirement of passing an order for contravention of provisions of Act, 1948 and Rules, 1969 as alleged in this case.
38. It is pertinent to note that subsequently another coordinate bench of this Court in W.P.No.11451/2018(GM-RES) in the case of MR. 61 Yashihirao Horinouchi v. The Deputy Director of Factories dated 06.12.2021 considered the provisions of Factories Act and Rules and discussed in detail when and under what circumstances the passing of the order before instituting complaint is required. The coordinate Bench after detailed discussion on this point came to the conclusion that, for contravention of only certain provisions of Act and Rules, the order is required to be passed. It is further held that the other provisions does not require passing of such order before instituting the complaint. At para 8, the co-ordinate bench raised a specific point for consideration in this regard as point (ii) as under:-
"8. .............
(i) ....................
(ii) Whether an order is required to be passed under Section 7A(2) (c) of the Factories Act, on the reply submitted to the show cause notice to enable the occupier to file an appeal under Section 107 of the Factories Act before registration of the criminal case?"
39. Further, at para 15, learned Single Judge dealt with section 7-A(2) (c) which reads as follows:- 62
15. The offence alleged against the petitioner is with regard to the violation of Section 7A(2)(c) of the Factories Act, which reads as follows:
7-A. General duties of the occupier.-- (1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.
(2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which such duty extends, shall include--
(a) the provisions and maintenance of plant and systems of work in the factory that are safe and without risks to health;
(b) the arrangements in the factory for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work;
(d) the maintenance of all places of work in the factory in a condition that is safe and without risks to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risks;
(e) the provision, maintenance or monitoring of such working environment in the factory for the 63 workers that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work."
Section 7A(2)(c) of the Factories Act does not require an order to be passed for the alleged offence.
Section 107 of the Factories Act deals with appeals that can be filed against the orders passed in writing by an Inspector under the provisions of the Factories Act. Section 107 reads as follows:
107. Appeals.--(1) The manager of a factory on whom an order in writing by an Inspector has been served under the provisions of this Act or the occupier of the factory may, within thirty days of the service of the order, appeal against it to the prescribed authority, and such authority may, subject to rules made in this behalf by the State Government, confirm, modify or reverse the order.
(2) Subject to rules made in this behalf by the State Government (which may prescribe classes of appeals which shall not be heard with the aid of assessors), the appellate authority may, or if so required in the petition of appeal shall, hear the appeal with the aid of assessors, one of whom shall be appointed by the appellate authority and 64 the other by such body representing the industry concerned as may be prescribed:
Provided that if no assessor is appointed by such body before the time fixed for hearing the appeal, or if the assessor so appointed fails to attend the hearing at such time, the appellate authority may, unless satisfied that the failure to attend is due to sufficient cause, proceed to hear the appeal without the aid of such assessor or, if it thinks fit, without the aid of any assessor.
(3) Subject to such rules as the State Government may make in this behalf and subject to such conditions as to partial compliance or the adoption of temporary measures as the appellate authority may in any case think fit to impose, the appellate authority may, if it thinks fit, suspend the order appealed against pending the decision of the appeal.
Section 107 gives a right to the occupier to file an appeal against an order that would be passed as mandated under certain provisions of the Factories Act. Therefore, Section 107 directs that an occupier of a factory on whom an order in writing by an Inspector has been served, the occupier of the factory may within 30 days of the service of the order, appeal against it to the prescribed authority and the authority subject to Rules made in this behalf modify or reverse the order. Therefore, emphasis under 65 Section 107 of the Factories Act is an order in writing to be passed by the Inspector and the same to be served under the provisions of the Factories Act.
16. The allegation against the petitioner, as statedhereinabove, is violation of Section 7A(2)(c) of the Factories Act which does not require an order to be passed in writing or the same to be communicated to the occupier. Sections 15, 38, 39 and 40 of the Factories Act speak of an order to be passed in writing by the Inspector and to be served upon the occupier of the factory. Sections 15(3), 38(1), 39 and 40(2) of the Factories Act read as follows:
15. Artificial humidification.--(1) In respect of all factories in which the humidity of the air is artificially increased, the State Government may make rules,-
... ... ... ...
(3) If it appears to an Inspector that the water used in a factory for increasing humidity which is required to be effectively purified under sub-section (2) is not effectively purified he may serve on the manager of the factory an order in writing, specifying the measures which in his opinion should be adopted, and requiring them to be carried out before specified date.
... ... ...
38. Precautions in case of fire.--(1) In every factory, all practicable measures shall he taken to prevent outbreak of fire and its spread, both 66 internally and externally, and to provide and maintain-
(a) safe means of escape for all
persons in the event of a fire, and
(b) the necessary equipment and
facilities for extinguishing fire.
... ... ... ...
39. Power to require specifications of defective parts or tests of stability.--If it appears to the Inspector that any building or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it may be dangerous to human life or safety, he may serve on the occupier or manger or both of the factory an order in writing requiring him before a specified date-
(a) to furnish such drawings, specifications and other particulars as may be necessary to determine whether such building, ways, machinery or plant can be used with safety, or
(b) to carry out such tests in such manner as may be specified in the order, and to inform the Inspector of the results thereof.
40. Safety of buildings and machinery.-(1) ... ...
(2) If it appears to the Inspector that the use of any building or part of a building or any part of the ways, machinery or plant in a factory involves imminent danger to human life or safety, he may serve on the occupier or manager or both of 67 the factory an order in writing prohibiting its use until it has been properly repaired or altered."
(Emphasis supplied) Therefore, if an order is not obligatory to be passed under the statute, no appeal would lie against the offence alleged under Section 7A(2)(c) of the Factories Act as is alleged in the case at hand. It is trite law that remedy of appeal is a creature of the statute. The Factories Act restricts an order to be passed only in certain circumstances as narrated (supra) and only against an order that is to be passed an appeal remedy is available. The inevitable inference that can be drawn is Section 107(1) of the Factories Act contemplates appeal from an order in writing by an Inspector served on the occupier under Sections 15(3), 38(1), 39 and 40(2) of the Factories Act (supra). Therefore, the plea that a right of appeal is lost is also lost by the learned Senior Counsel.
Therefore, the second point that has arisen for consideration is also answered against the petitioner.
40.Therefore, in view of the decision of coordinate bench referred above, wherein there is direct discussion as to under what circumstances the order is required to be passed so as to enable the manager of the factory to file an appeal, which in my opinion, has direct bearing on the question involved in this case, the reliance placed on the 68 decision relied by petitioner's counsel will not help the petitioner in any way.
41. Learned counsel for the petitioner contended that the judgment of the learned Single Judge in the case of Yashihirao Horinouchi supra is a subsequent judgment. Earlier judgments were not referred in that case. Therefore, he argued that the earlier judgment should be followed by this Court. In this regard, he relied on the decision of the Constitution Bench of the Hon'ble Supreme Court of India in the case of National Insurance Company Limited v. Pranay Sethi and Others, ((2017) 16 SCC 680 at paras 16 to 20.
42. The decision of Chandra Prakash v. State of U.P., another Constitution Bench decision reported in (2002) 4 SCC 234, the Hon'ble Supreme Court held that judicial consistency promotes confidence in the system, therefore, there is need for consistency in the enunciation of legal principles in the decision of this Court. Therefore, the proposition stated in this judgment will not help the petitioner in any way.
69
43. Further, learned counsel for the petitioner relied on another decision of the Hon'ble Supreme Court in the case of DR. Shah Faesal & Others v. Union of India and Another, (2020) 4 SCC 1), wherein the Hon'ble Supreme Court has dealt with principles of per incuriam under Article 141 of the Constitution and also referred to Rule of Judicial precedents and Doctrine of stare decisis. The Hon'ble Supreme Court has also explained the Certainty, stability and continuity of judicial precedents as basis for development of rule of law.
44. Further, the learned counsel relied upon the decision of the Hon'ble Supreme Court in the case of Official Liquidator v. Dayanand and Others reported in (2008) 10 SCC 1. The said decision has no application to this case.
45. Further, the decision in the case of Divisional Controller, KSRTC v. Mahadeva Shetty & Anr., reported in (2003) 7 SCC 197, it is held at para 23 as under:-
23. So far as Nagesha's case (supra) relied upon by the claimant is concerned, it is only to be noted that the decision does not indicate the basis for fixing of the quantum as a lump sum was fixed 70 by the Court. The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Therefore, while applying the decision to a later case, the Court dealing with it should carefully try to ascertain the principle laid down by the previous decision. A decision often takes its colour from the question involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty as without an investigation into the facts, it cannot be assumed whether a similar direction must or ought to be made as measure of social justice. Precedents sub silentio and without argument are of no moment. Mere casual expression carry no weight at all. Nor every passing expression of a Judge, however eminent, can be treated as an ex cathedra statement having the weight of authority."
It is evident from said decisions that again the Hon'ble Supreme Court dealt with binding authority of precedent. The Hon'ble Supreme Court clearly held that mere casual expressions are not binding. The judgment shows that the only thing binding as an authority upon a subsequent Judge is the principle upon which the case was decided and the court has to carefully try to ascertain the 71 principle laid down while applying the decision to the later case. So this position cannot be disputed at all.
46. The learned counsel relied on another decision in Union of India and Another v. Raghubir Singh (DEAD) BY LRs., ETC., reported in (1989) 2 SCC 754. The proposition of law stated in that decision regarding referring a case to larger bench when there is inconsistency cannot be disputed at all. Because there is no question of inconsistency in the earlier decisions or subsequent decisions. They are based on different facts and circumstances and nature of consideration involved in those case.
47. There cannot be any dispute about the proposition stated in the above decisions. In the case on hand, the question involved is whether an order is required to be passed for contravention of provisions of sections and rules under the Factories Act as alleged by the complainant. No such discussion was there in the earlier decisions relied by learned counsel for the petitioner. They are writ petitions and criminal petitions filed under section 482 Cr.P.C. seeking quashing of the proceedings. In those cases, the 72 contravention of provisions are totally different when compared to this case. No such principles on requirement of passing an order for contravention of any provisions of Factories Act and Rules was enunciated or discussed. Only relying on the Judgment of the Madras High Court, subsequent orders are passed. They have no direct bearing on the issues raised in this case. No such authoritative pronouncement on question of law on this point, so as to term it as a binding precedent is forthcoming in the said decisions. They are all very recent judgments based on the facts and point argued in that case. Therefore, the question of either disagreeing with those decisions or not following those decisions does not arise. In criminal cases, there are broad and general principles of law enunciated by the courts for appreciation of evidence, but the court has to decide the case based on facts of that case and the relevant provisions and the principles of law applicable to the case on hand. There cannot be any generality of following a particular decision which is not based on the facts and circumstances and the provisions of law involved in the case on hand.
73
48. Therefore, I find that when there is no requirement of law to pass an order under section 107 for contravention of the provisions under the Factories Act and Rules as alleged in this case. Therefore, the contention of learned counsel for petitioner to quash the proceedings does not hold good. Accordingly, I answer this point in the negative.
49. In view of the above discussions to point No.1 to 4, the revision petition being devoid of merits is liable to be dismissed.
Accordingly, I pass the following:-
ORDER
1. The revision petition is dismissed.
2. Since the matter is pending from the year 2012, the trial court is directed to expedite the trial and dispose of the matter as early as possible.74
3. Send back the records to the trial court immediately.
4. There is no order as to costs.
Sd/-
JUDGE MN/-