Jharkhand High Court
A.K.Mukherjee vs State Of Bihar & Anr. on 23 March, 2012
Author: H.C.Mishra
Bench: H.C.Mishra
(An Application under Section 482 of the Code of Criminal Procedure, 1973) Criminal Miscellaneous No.5918 of 2000 (R ) A.K.Mukherjee .... Petitioner -Versus- 1. The State of Bihar (Now Jharkhand) 2. Shri N.K.Singh ..... Opposite Parties ------ PRESENT : HON'BLE MR. JUSTICE H.C.MISHRA ------ For the Petitioner : Mr.K.Sarkhel, Advocate. For the State : Mr.S.K.Dubey, Advocate. ------ By the Court Heard the learned counsel for the petitioner and the learned counsel for the State. 2. Petitioner being the Chairman-cum-Managing Director of M/s Hindustan Steelworks Construction Ltd, has filed the present application under Section 482 of the Cr.P.C for quashing the entire criminal proceeding initiated against him in connection with Case No. F.A. 4 of 1997 including the order dated 3.2.1997 passed by the learned Chief Judicial Magistrate, Bokaro at Chas, whereby, the cognizance for the offence under Section 105 of the Factories Act 1948 and Rules 13(1)(c) of the Bihar Factories Rules 1950 has been taken against the petitioner, as also the order dated 7.4.2000/10.4.2000, whereby the warrant of arrest has been issued against the petitioner without service of summons to the petitioner. 3. The facts of the case lie in a brief compass. A complaint under the Factories Act was filed by the Inspector of Factories, Bokaro Circle No.1, Bokaro Steel City, Bokaro before the Chief Judicial Magistrate, Bokaro, under Section 105 of the Factories Act and Rule 13 (I) (c) of the Bihar Factories Rules 1950, which was registered as FA Case No. 4 of 1997, for the violations alleged under Section 88 of the Factories Act read with Rule 96 of the Bihar Factories Act and of the Provisions of Rule 55-A of the Bihar Factories Rules, supported by Sections 40 and 41 of the Construction Worker Act 1996 and clause 3 of the instructions issued by the HSCL Ltd. / Bokaro Steel Plant for its construction work. 4. From the Statement made in the complaint petition, it appears that Hindustan Steelworks Construction Ltd (hereinafter referred to as HSCL) is a registered Government Company under the Companies Act at Bokaro Steel City and is engaged in the work of construction, extension, maintenance, cleaning and to assist in other manufacturing process and the works incidental to or connected with the manufacturing process carried out in the premises and 2 precincts of Bokaro Steel Plant. It is stated that the HSCL is a 'Factory' under the provisions of Factories Act, of which, the petitioner being the Chairman-cum-Managing Director is having the ultimate control over the affairs of the work and hence, the petitioner is to be treated as 'Occupier' and the other co-accused, Sri R.C.Mathur, Executive Director who was directly responsible to the occupier, was to be treated as 'Manager' for the purpose of the Factories Act. It is further stated in the complaint petition that an accident took place in the premises of the Bokaro Steel Plant on 5.11.1996 at 11.40 A.M, in which, a worker namely Shri Sita Ram Singh met with an accident which proved fatal. The accident report was submitted by the Management on 07.11.1996
and accordingly, the complainant who is the Inspector of Factories came to know about the accident on 08.11.1996 only. Thereafter, only the details as to how the accident had taken place have been given in the complaint petition. The said complaint petition includes the statement regarding the violations, irregularities and the responsibilities, wherein it is stated that Shri R. C. Mathur, the Executive Director, HSCL Ltd. was legally responsible under Section 88 of the Factories Act read with Rule 96 of the Bihar Factories Act for not reporting in writing the accident to the Area Inspector of factories within the prescribed time limit of 12:00 hours from the point of time of the accident. The Occupier (i.e. the petitioner) and Manager (i.e. Shri R. C. Mathur, the Executive Director of the HSCL Ltd.), the petty contractor of HSCL Ltd. Shri Kripal Singh and the Supervisor of the HSCL Ltd. and other persons were responsible for violations of the Provisions of Rule 55-A of the Bihar Factories Rules, supported by Sections 40 and 41 of the Construction Worker Act 1996 and clause 3 of the instructions issued by the HSCL Ltd. / Bokaro Steel Plant for its construction work and, accordingly, for this gross negligence, a complaint petition was filed under Section 105 of the Factories Act.
5. By order dated 03.02.1997, cognizance was taken by the learned C.J.M., Bokaro in the said F.A. No. 4 of 1997 under Section 105 of the Factories Act and Rule 13 (I) (c) of the Bihar Factories Rules and subsequently by order dated 07.04.2010/10.04.2010 the warrant of arrest was issued against the accused including the petitioner. The certified copy of the order-sheet has been brought on record which shows that the service report of the summons issued by the Court against the petitioner was still awaited.
6. Learned counsel for the petitioner has submitted that the impugned order dated 03.02.1997, whereby cognizance was taken under section 105 of the Factories Act, is absolutely illegal, inasmuch as this provision is not at all penal provision. It has further been submitted that the penal provisions are contained in Chapter X of the Factories Act and Section 105 of the Factories Act deals with cognizance of the offences. It has also been submitted that the impugned order dated 07.04.2000/10.04.2000 is also absolutely illegal 3 inasmuch as, the warrant of arrest had been issued against the petitioner without getting the service report of the summons issued against him and, accordingly, both these orders cannot be sustained in the eyes of law. Learned counsel further submitted that from the complaint petition, it is apparent that the petitioner is charged for violation of Section 88 of the Factories Act read with Rule 96 of the Bihar Factories Rules for not reporting in writing the accident to the Area Inspector of factories within the prescribed time limit of 12:00 hours from the time of accident. Leaned counsel has drawn attention of this Court towards Section 88 of the Factories Act and Rule 96 of the Bihar Factory Rules which deals with the notice of the certain accidents and the responsibility is fixed on the Manager of the factory to send the notice of the accident to such authorities and in a such form and within such time as may be prescribed. Under Section 88 of the Factories Act, or under Rule 96 of the Bihar Factory Rules, no such responsibility is cast on the Occupier of the factory and learned counsel has accordingly, submitted that the petitioner could not have been made an accused for the offence as the responsibility of sending the notice was not of the petitioner.
7. Learned counsel has submitted that though under Section 92 of the Factories Act the Occupier and Manager both have been made responsible for the offence committed under the Act, but it is submitted that under the Factories Act, there are separate provisions in which the responsibility is either cast on the Manager or on the Occupier only. It is submitted that in case the responsibility is cast on the Manager, only the Manager shall be guilty and in case the responsibility is cast on the Occupier, only the Occupier shall be guilty under section 92 of the Act. It is only when the responsibility is not cast on any of them, the responsibility shall be of Occupier and Manager both.
8. In this connection, learned counsel for the petitioner has placed reliance upon the decision of the Hon'ble Nagpur High Court in the case of State Government, Madhya Pradesh Vs. Maganbhai Dasaibhai, reported in AIR 1954 Nagpur 41, wherein where, an obligation to maintain certain registers was found to be imposed on the Manager and not on the Occupier, the law was laid down as follows:-
"(15) There are several sections where there is no reference to a manager or occupier. Section 21 is an instance. In case of contravention of S. 21, S. 92 makes both the occupier and manager liable. There are some provisions under which the responsibility is cast on the occupier. In such cases a manager cannot be held liable for the contravention. Penal statutes have to be strictly construed. It is a cardinal principle of criminal law that unless the statute, either clearly or by necessary implication, rules out 'mens rea' as a constituent part of the crime, an accused should not be found guilty 4 of an offence against the criminal law unless he has got a guilty mind. The occupier cannot be said to have a guilty mind when he is not charged with the duty of maintaining the register under Ss. 62 and 83 and R. 91. ------------------------".
9. Placing reliance on this decision, learned counsel submitted that in the present case also, Section 88 of the Factories Act as well as Rule 96 of the Bihar Factories Act clearly casts the responsibility of giving information of accident upon the Manager and not on the Occupier and accordingly, even though Section 92 of the Factories Act provides that the Occupier and Manager of the factory shall each be guilty of the offence, the same has to be construed that where the responsibility is cast on the Manager, the Manager shall be held guilty and in case, the responsibility is cast on the Occupier, the Occupier shall be held guilty.
10. It is submitted that in view of the fact that Section 88 of the Factories Act and Rule 96 of the Bihar Factories Rules do not cast any responsibility upon the Occupier, the said complaint petition filed against the petitioner being an Occupier of the factory, cannot be maintained and it is a fit case in which the entire criminal proceeding should be quashed, including the orders impugned, whereby, the cognizance was taken against the petitioner and the warrant of arrest was issued.
11. Learned counsel for the respondent State, on the other hand, submitted that Section 92 of the Factories Act clearly states that for the offence committed under the Act, the Occupier and Manager of the factory shall each be guilty of the offence and accordingly, there is no illegality in the impugned order, taking cognizance against the petitioner. Learned counsel for the State has also submitted that in the complaint petition, there is allegation of violation of Rule 55 A of the Bihar Factories Rules also, in which, there is no mention about the responsibility of either the Manager or the Occupier and accordingly, the petitioner cannot escape from the liability under the said Provisions. However, the fact remains that the cognizance has not been taken for any violation under Rule 55 A of the Bihar Factories Rules.
12. After having heard the learned counsels for both sides, I find that under the Factories Act, there are certain provisions such as Section 41-B, Section 41-C etc, in which, the responsibility is directly cast upon the Occupier of the factory. In these sections, no responsibility is cast on the Manager of the factory. Whereas, under Section 88 of the Factories Act and certain other Sections, the responsibility is cast only on the Manager of the factory of giving certain information and no such responsibility is there on the Occupier. The complaint petition clearly states that an offence was committed only due to the 5 fact that the required information about the accident was not given within time by the Manager. However, the Occupier and Manger both of HSCL and the other co-accused were alleged to be responsible for the same.
13. In the present case, particularly in view of the allegation that the offence is made out for not giving the information about the accident, which under the Act, was required to be given only by the Manager, I find myself fully in agreement with the law laid down by the Hon'ble Nagpur High Court in State Government, Madhya Pradesh case (Supra). Accordingly, I am of the considered view that the Occupier, i.e., the petitioner cannot be said to have had a guilty mind when he was not charged with the duty of giving the information about the accident. Accordingly, the impugned order dated 03.2.1997 passed by the learned Chief Judicial Magistrate, Bokaro, whereby, the cognizance under Section 105 of the Factories Act 1948 and Rules 13(1)
(c) of the Bihar Factories Rules 1950 has been taken against the petitioner, cannot be sustained in the eyes of law. I also find force in the submission of the learned counsel for the petitioner that the order of issuing warrant of arrest against the petitioner, which was issued without awaiting the service report of the summons, is also absolutely illegal and the same also cannot be sustained in the eyes of law. Though learned counsel for the State has submitted that in the complaint petition, there is allegation of violation of Rule 55 A of the Bihar Factories Rules also, in which, there is no mention about the responsibility of either the Manager or the Occupier and accordingly, the petitioner cannot escape from the liability, but the fact remains that the cognizance has not been taken against the petitioner for any violation under Rule 55 A of the Bihar Factories Rules. It is also apparent from perusal of the impugned order that there is no mention about any penal provision for which the cognizance was taken against the petitioner. The impugned order, rather states that the cognizance for the offence under Section 105 of the Factories Act is taken against the petitioner, which is not at all a penal provision. This clearly shows complete non application of judicial mind by the learned Chief Judicial Magistrate, Bokaro.
14. In view of the discussions made above, both the impugned orders dated 03.2.1997 and dated 07.04.2010/10.04.2010 passed by the learned Chief Judicial Magistrate, Bokaro in Case No. F.A. 4 of 1997, are hereby, set aside and the matter is remanded back to the learned Chief Judicial Magistrate, Bokaro to pass a fresh order in accordance with law. This application, is accordingly, allowed.
(H.C.Mishra, J.) Jharkhand High Court, Ranchi Dated - 23.03.2012 N.A.F.R/ BS/4