Jharkhand High Court
Mr Ravindra Pisharody And Anr vs The State Of Jharkhand And Anr on 30 July, 2015
Equivalent citations: 2016 (1) AJR 684, (2015) 147 FACLR 111 (2015) 3 CURLR 988, (2015) 3 CURLR 988
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.1006 of 2014
1. Mr. Ravindra Pisharody s/o Sri Narain Pisharody, r/o Hill Park Building no.1,
Flat no.9, 2nd Floor, A. Bell Road, Malabar Hill, P.O. & P.S. Malabar Hill, Distt.
Mumbai, Maharashtra
2. Mr. A.B. Lal @ Ajoy Bihari Lal s/o Sri C.B. Lal @ Chhath Bahadur Lal, r/o
Bungalow no.1, Nildih Road, P.O. & P.S. Telco District East Singhbhum
............................................................................................... Petitioners
Versus
1. The State of Jharkhand
2. Shri Arun Kumar Mishra s/o not known to the petitioners presently posted as
Factory Inspector, Jamshedpur, Anchal1, Jamshedpur, P.O. & P.S. Bistupur Town
Jamshedpur, Distt. East Singhbhum, Jharkhand ...... Opposite Parties
CORAM: HON'BLE MR. JUSTICE D.N. UPADHYAY
For the Petitioners : Mr. Shashi Anugrah Narayan, Sr. Advocate
Mr. V.P. Singh, Sr. Advocate
Mr. Amit Kumar Das, Advocate
Mrs. Rashmi Kumari, Advocate
For the State : Mr. Awnish Shankar, A.P.P.
O R D E R
C.A.V. on : 21.07.2015 Pronounced on : 30.07.2015
This Cr.M.P. has been filed for quashing the order dated 13.01.2014
passed by learned Additional Chief Judicial Magistrate, Jamshedpur in
connection with C2 Case No.29 of 2014 whereby cognizance under Section 92
of the Factories Act has been taken against the petitioners and also for quashing
the entire criminal prosecution arising out of said C2 Case No.29 of 2014.
2. The facts, in brief, are that O.P. No.2 filed a prosecution report on
06.01.2014alleging interalia that the premises of M/s Tata Motors Ltd. was inspected on 28.10.2013 at about 2.00 p.m. and violation of mandatory statutory provisions of Jharkhand Factories Rules, 1950 have been noticed and noted. The inspection report was forwarded to the petitioners on 07.11.2013 vide Memo No.535 whereupon the petitioners had submitted their response on 27.11.2013 vide letter No.156 explaining details about those aspects and denying any lapse on their part. Whereafter O.P. No.2 filed prosecution report vide letter No.04 dated 06.01.2014 in the Court of learned Additional Chief Judicial Magistrate, Jamshedpur whereupon cognizance as aforesaid under Section 92 of the Factories Act, 1948 has been taken against the petitioners 2 alleging petitioner No.1 as Occupier and petitioner No.2 as Manager of the factory.
3. It was submitted that the learned A.C.J.M., Jamshedpur without applying judicial mind, has taken cognizance under Section 92 of the Factories Act and directed to issue summons against petitioners. It was pointed out that response made by the petitioners through their letter No.156 dated 27.11.2013 as well as the inspection report are the part of the prosecution report as enclosure but the learned Magistrate did not bother to go through those documents before passing the order impugned and in a mechanical way passed the order of cognizance and directed to issue summons against the petitioners. The learned counsel has relied upon the judgment reported in 1998(5) SCC Para 28 and submitted that summon on an accused in a criminal case is a serious matter. Criminal law cannot be set in 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.
4. It was submitted that the Occupier and Manager of the factory have already taken and have been strictly ensuring all statutory compliances on its own and also through various stake holders for the utmost welfare of all the workers including the contract workers while they are at work within the factory premises. It is not that all the contractors engaged by the company were entrusted with hazardous work. Some of the contract labours who had been discharging hazardous work were given proper safety and all safety standards are being applied with. Only two of the contractors namely M/s Ahmad & Sons and M/s B.B.G. India Ltd. are engaged in the hazardous process and none of the other contractors are engaged in any hazardous process in the factory. The workers are being mandatorily medically examined within stipulated intervals and after being found fit, they are permitted to work within the factory premises. It was also contended that according to Government notification No.2/F11049/94 L&E 72 dated 03.05.1995, 14 numbers of safety officers have been appointed and recently prior to the date of inspection, one of the safety officer retired. As a matter of fact, required number of safety officers as per the strength of the workers were already employed and no violation of any rule, as indicated in the prosecution report, has ever been done. The certificate of one 3 of the safety officer Rajendra Singh has been looked with suspicion but the documents goes to show that he had completed Diploma Programme in Industrial Safety from Advance Technological Institute, Jamshedpur. The prosecution report further indicates that no over time registers were maintained by the contractors. No proper canteen facility was provided and the structure of canteen was not duly approved by the Inspector of Factories and likewise, minor defects and irregularities are alleged to have been noted by the inspecting team but the petitioners have duly replied those points in their response and submitted that no violation of any rule of Jharkhand Factories Rules, 1950 has ever been violated and therefore, petitioners are not liable to be prosecuted for the offence punishable under Section 92 of the Factories Act, 1948. Learned counsel appearing for the petitioners has further placed reliance on the judgments reported in (1) 2007 (2) PLJR SC 226, (2) 2008 (1) PLJR 51 (3) (2009) 10 SCC 184 (4) (2009) 3 SCC 375, and (5) (1998) 7 SCC 698 and submitted that stereo type order could not be passed at the time of taking cognizance. The incumbent duty cast on the Magistrate is to see whether the material placed before the Court primafacie constitute offence to proceed further. Before taking cognizance, averments made in the complaint, statement of the witnesses recorded during enquiry and the admitted documents and evidences are to be looked into. On consideration of aforesaid facts and evidences, if no offence is made out, the Court should not pass order of taking cognizance and the accused is not required to be summoned to face trial. In the case at hand, after receiving the inspection report the petitioners had given parawise response annexing the required documents but O.P. No.2 did not consider that response in proper perspective and leisurely rejected the same without assigning any reason which is apparent from para19 of the complaint. The order of cognizance dated 13.01.2014 passed by learned Additional Chief Judicial Magistrate, Jamshedpur in connection with C2 Case No.29 of 2014 and the entire criminal prosecution arising out of said C2 Case No.29 of 2014 against the petitioners are liable to be quashed.
5. Learned counsel appearing for the opposite parties have vehemently opposed the prayer and submitted that learned counsel for the 4 petitioner has relied on the judgments in which cognizance was taken on a private complaint but here in the case at hand, it is a Government complaint and before taking cognizance perusal of the complaint and prosecution report is sufficient for passing an order of cognizance. The petitioners are trying to impress upon the Court to pass judgment before trial by invoking inherent power conferred under Section 482 of the Cr.P.C. but that is not the correct proposition of law. The defence taken by the accused are to be considered during trial. Even admitting some of the documents and reply to be correct, violation of other statutory rules is apparent from the complaint itself. There is no merit in this Cr.M.P. and the same is liable to be dismissed.
6. I have gone through the prosecution report and the complaint petition as well as the impugned order. ChapterXV of the Code of Criminal Procedure deals with complaint case. Section 200 Cr.P.C. reads as follows: "Examination of Complainant. 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:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint;
or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re examine them."
Proviso (a) of Section 200 Cr.P.C. talks about when the complaint is made in writing by a public servant acting or purporting to act in the discharge of his official duty or a Court has made the complaint, the Magistrate need not examine the complainant and the witnesses. Therefore, if the complaint filed in writing by a public servant acting or purporting to act in the discharge of his official duty, examination of complainant and the witnesses are exempted. In case of a Government complaint only the complaint in writing with the 5 prosecution report is being placed before the Court for the purpose of passing order either under Section 203 or under Section 204 of the Cr.P.C. The examination of witnesses in case of such complaint is also exempted and therefore, question of considering the statement of witnesses recorded during enquiry does not arise at all because it is not at all available. But, in the private complaint, besides the averments made in the complaint, statement of complainant recorded on Solemn Affirmation and statement of witnesses recorded during enquiry are available before the Magistrate for passing an order either under Section 203 or under Section 204 of the Cr.P.C. The learned counsel has referred to judgments relating to order of cognizance passed in a private complaint and therefore, criteria of consideration available in those cases are not available in the case at hand. If on perusal of the complaint, the Magistrate found material to proceed further against the accused, order under Section 204 Cr.P.C. can well be passed. In the complaint filed in the case at hand, the complainant has given parawise facts and circumstances which violated specific statutory rules of Jharkhand Factories Rules, 1950 and violation of rules of Jharkhand Factories Rules, 1950 is punishable under Section 92 of the Factories Act, 1948. It is not that the averments made in the complaint does not constitute offence punishable under Section 92 of the Factories Act. Now, the question arises whether the response given by the petitioners is required to be considered at the very initial stage? Whether the defence taken by the petitioners can be considered by exercising inherent power conferred under Section 482 Cr.P.C. ?
7. In view of the judgments cited, admitted facts available can well be looked into at the time of passing order either under Section 203 or 204 of the Cr.P.C. but then if the averments made in the complaint and the materials available on record still constitute offence and attract the ingredients, order under Section 204 Cr.P.C. can well be passed. So far the defence of the accused is concerned, it is a matter to be considered at the time of trial. Even for the argument sake, if correctness of some of the documents furnished by the petitioners in their response is admitted, then too, violation of other Jharkhand Factories Rules appears indicated in the complaint itself and those violations are punishable under Section 92 of the Factories Act. I have already held that if a Government complaint filed in writing, examination of complainant and witnesses are exempted and the Magistrate can take cognizance after perusing 6 the complaint, if the averments made therein constitute the offence alleged.
8. In view of discussions made above, facts and circumstances appearing in the case at hand, I do not find that grounds taken by the petitioners stand fit in, in any of the seven criteria given by the Hon'ble Apex Court in the case of State of Haryana Vrs. Bhajan Lal reported in 1992 Supp (1) SCC 335 and therefore, I do not find it desirable to exercise power conferred under Section 482 Cr.P.C. to quash the order of cognizance dated 13.01.2014 passed by learned Additional Chief Judicial Magistrate, Jamshedpur in connection with C2 Case No.29 of 2014 and the criminal prosecution of the petitioners arising out of said complaint case No. C2 Case No.29 of 2014.
9. Accordingly, this Cr.M.P. stands dismissed.
(D. N. Upadhyay, J.) Jharkhand High Court, Ranchi Dated : 30.07.2015 NKC// N.A.F.R.