Madhya Pradesh High Court
Shiv Singh Mehta vs The State Of Madhya Pradesh on 29 February, 2016
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
SINGLE BENCH : HON'BLE SHRI JUSTICE S.C. SHARMA
M.Cr.C.No.1916/2014
Shiv Singh Mehta and Another
vs
State of M.P.
M.Cr.C.No.1917/2014
Shiv Singh Mehta and Another
vs
State of M.P.
M.Cr.C.No.5192/2014
Ravi Kathuria
vs
State of M.P.
O R D E R
(Delivered on this 1st March, 2016) Ms. Kirthi Patwardhan, learned Counsel for the petitioners. None for respondent-State Regard being had to the similar controversy involved in above cases, they have been heard analogously together with the consent of the parties and a common order is being passed in the matter. Facts of M.Cr.C. Case No.1916/2014 are narrated as under:-
2. The petitioner before this Court has filed this present petition under Section 482 for quashment of proceedings initiated by respondent-State of MP through Factory Inspector. The facts of the -2- case reveal that on the basis of complaint preferred under the Factories Act-1948, a criminal case has been registered against the petitioner who is the Managing Director of the Company.
3. The facts of the case reveal that the workman namely Devendra Prajapathi on 09/01/2011 met with an accident and received injury on his two fingers, however, his little finger was amputated and in those circumstances, inspection was carried out by the Factory Inspector on 17/01/2011. He has thereafter, filed a complaint for initiating action against the petitioner for violation of Factories Act 1948.
4. The sole ground raised by learned Counsel Ms. Kirthi Patwardhan is that the Factory Inspector has not inspected the factory with assistants or with experts as required under Section 9A of the Act of 1948. There is no dispute that the Factory Inspector has inspected the factory after the incident all alone. Learned Counsel has placed reliance upon a judgment delivered by this Court in the case of H K Kala vs. State of M.P. reported in MPLJ 2008-3-526. This Court in paragraph 2 & 3 of the aforesaid judgment has held as under:-
2. The facts in brief necessary for disposal of the present petition are that the petitioner No.1 is working as the Chief Workshop Manager and petitioner No.2 is working as the Deputy Chief Mechanical Engineer, are the occupiers within the definition of the Act. The Rail Spring Factory, Sitholi has a Deep Paint Plant located at Sitholi, gwalior and on 5.4.2002 a small explosion took place in the Deep Paint Plant. The Factory Inspector was appointed under the provisions of Section 8 of the Act who inspected the factory and submitted his report. On the basis of his report, a prosecution was initiated under Section 92 of the Act. The petitioners submitted an objection regarding maintainability of the complaint and it was stated by the petitioners that the Factory Inspector has violated the provisions of the Act and, therefore, the petitioners cannot be prosecuted. It is also argued on behalf of the petitioners before this Court that the factory in question is under the control of the Union of India -3- and the petitioners are the senior officers working under the Union of India. It has been further stated that because of the incident in question, which took place on account of explosion in the factory neither any casuality has taken place nor any injury has been caused to any workman as it was a simple and small explosion occurred in the Deep Paint Plant.
Chapter 2 of the Act deals with inspecting spot which includes the Inspector also. Section 9 of the act read as under:
9. Powers of Inspectors-- Subject to any rules made in this behalf, an Inspector may, within the local limits for which he is appointed (a) enter, with such assistants, being persons in the service of the Government, or any local or other public authority, (or with an expert) as he thinks fit, any place which is used, or which he has reason to believe is used, as a factory; (b) make examination of the premises, plant, machinery, article or substance; (c) inquire into any accident or dangerous occurrence, whether resulting in bodily injury, disability or not, and take on the spot or otherwise statements of any person which he may consider necessary for such inquiry; (d) require the production of any prescribed registered or any other document relating to the factory; (e) seize or take copies of, any register, record or other document or any portion thereof as he may consider necessary in respect of any offence under this Act, which he has reason to believe, has been committed; (f) direct the occupier that any premises or any part thereof, or anything lying therein,shall be left undisturbed (whether generally or In particular respects) for so long as is necessary for the purpose of any examination under clause (b); (g) take measurements and photographs and make such recordings as he considers necessary for the purpose of any examination under clause (b) taking with him any necessary instrument or equipment; (h) in case of any article or substance (b) taking with him any necessary instrument or equipment; (h) in case of any article or substance found in any premises, being an article or substance which appears to him as having caused or is likely to cause danger to the health or safety of the workers, direct it to be dismantled or subject it to any process or test (but not so as to damage or destroy it unless the same is, in the circumstances necessary, for carrying out or purposes of this Act), and take possession of any such article or substance or a part thereof, and detain it for so long as is necessary for such examination; (I) exercise such other powers as may be prescribed; provided that no person shall be compelled under this Section to answer any question or give any evidence tending to incriminate himself."
From a bare perusal of the aforesaid section, it is evident that the Inspector of the factory is empowered to visit the factory within the local limits for which he was appointed.
-4-However, it is also provided that while entering into the factory, he is required to enter into the factory with assistants being persons in service of the Government or any public authority i.e., an expert.
In the present case, as already stated earlier that a small explosion has taken place, the Factory Inspector could have entered the factory premises with an expert as provided under Section 9 of the act, and, that too, such assistants being persons in service of the Government or any local or other public authority. However, the Factory Inspector all alone went inside the factory and submitted a report in the matter with regard to the explosion. It is also pertinent to mention that Factory Inspector as already stated above was not a specialist / expert, on the basis of whose report, the complaint has been entertained under Section 105 of the Act. This Court is of the considered opinion that the minor explosion took place at the time when the plant was being switched on, keeping in view the fact that a small explosion has takne place in the matter when the plant was being switched on and in view the provisions of section 9 of the Act, which have been violated, no useful purpose would be served for taking any action on the complaint against the occupiers of the factory as they are not at all responsible for the explosion in question. It has been stated in the report the three workmen have suffered some minor injuries in the matter and proper safety equipments were available on the spot, and therefore, the report of the Factory Inspector does not help the respondents to make the petitioners responsible for the explosion. Merely because the petitioners are occupiers of the factory, they cannot be prosecuted by filing a complaint under Section 105 of the Act in view of the fact that provisions of section9 have not been complied with by the Factory Inspector.
3. In view of the aforesaid, this Court is of the opinion that the writ petition deserves to be and is hereby allowed by setting aside the impugned order dated 18 th January, 2005 and the proceedings initiated against the petitioners under Section 105 of the Act which are pending before the Labour Court No.1, are hereby quashed. No order as to costs. Petition Allowed."
The report of the Factory Inspector does not reveal the specific violations by the occupier of the factory. He has made vague allegations against the occupier of the factory. However, the fact remains that he has not carried out the inspection in the presence of assistants or any other persons who were expert in respect of safety -5- measures.
Resultantly, in light of the judgment delivered in the case of H K Kala vs State of M.P., the petition preferred under Section 482 stands allowed and the Criminal Case No. 1015/2011 stands quashed. The other connected petitions preferred under Section 482 of the Code of Criminal Procedure i.e., M.Cr.C.No.1917/2014 and M.Cr.C.No.5192/2014 are also allowed and the criminal cases stand quashed.
Certified copy as per rules.
(S.C. Sharma) Judge karuna