Patna High Court - Orders
Sri Gyan Chand Daga vs State Of Bihar & Anr on 30 April, 2012
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court Cr.Misc. No.29648 of 2009 (5) dt.16-04-2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.29648 of 2009
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Sri Gyan Chand Daga, Son of Shri S.R. Daga, resident of 42 Casa Grande,
Little Gibbs Road, Malabar Hills, Mumbai-6, Director (Marketing), Indian
Oil Corporation Ltd., Indian Oil Building, G-9, Alivar Jung Marg, Bandra
(East), Mumbai-400051.
.... .... Petitioner/s
Versus
1. State Of Bihar
2. Inspector of Factories, Begusarai Division, Begusarai
.... .... Opposite Parties.
with
Criminal Miscellaneous No.29649 of 2009
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Sri Gyan Chand Daga, Son of Shri S.R. Daga, resident of 42 Casa Grande,
Little Gibbs Road, Malabar Hills, Mumbai-6, Director (Marketing), Indian
Oil Corporation Ltd., Indian Oil Building, G-9, Alivar Jung Marg, Bandra
(East), Mumbai-400051.
.... .... Petitioner/s
Versus
1. State Of Bihar
2. Inspector of Factories, Begusarai Division, Begusarai
.... .... Opposite Parties.
======================================================
Appearance :
(In Cr.Misc. No.29648 of 2009)
For the Petitioner/s : Mr. K.D. Chatterjee, Sr. Adv.
Mr. Anil Kumar Sinha
Mr. Mritunjay Kumar
For the Opposite Party/s : Mr. Dr. Mayanand Jha, Addl. P.P.
(In Cr.Misc. No.29649 of 2009)
For the Petitioner/s : Mr. K.D. Chatterjee, Sr. Adv.
Mr. Mritunjay Kumar
Mr. Anil Kumar Sinha
For the Opposite Party/s : Mr. Mr.Dr. Mayanand Jha, Addl. P.P.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER
5 30-04-20121. Both above said petitions were heard analogously with consent of both the parties as the common question of law was involved in above-said petitions and accordingly, a Patna High Court Cr.Misc. No.29648 of 2009 (5) dt.16-04-2012 common order is being passed in both the above-said petitions.
2. Two separate complaint petitions i.e. Complaint Case No. 25C 2 of 2006 as well as Complaint Case No. 26C2 of 2006 were filed by Sri Gopal Kumar, Factory Inspector, Begusarai Division, District-Begusarai against the petitioner and one co-accused, Sri S.A. Khan for violation of Sections-41C & 62 of Factories Act read with rules 62 NH, rule 62OH and rule 80 of Bihar Factories Rules 1950 punishable under Sections-96A & 92 of Factories (amended) 1987 Act. On the basis of aforesaid complaint petitions, learned Chief Judicial Magistrate, Begusarai took cognizance for the above-said offences vide order dated 30-08-2006 against which, the above-said petitions have been preferred by petitioner under Section- 482 of the Cr.P.C.
3. The brief fact which lies to file these petitions is that the above-said Gopal Kumar, Factory Inspector, Begusarai Division, Begusarai inspected the premises of Barauni Marketing Terminal of Indian Oil Corporation Ltd on 29-05-2006. The aforesaid Barauni Marketing Terminal of Indian Oil Corporation Ltd had been registered under the Patna High Court Cr.Misc. No.29648 of 2009 (5) dt.16-04-2012 Factories Act in the category of hazardous factory having registration No. 62675/BSR. At the time of aforesaid inspection, Sri A.S. Khan was posted as Manager (RC) of the aforesaid factory and the aforesaid factory inspector came to know that one Dr. A.G. Kannan (Director, Marketing) was the occupier of the aforesaid factory under Section-2(N) of Factories (amended) 1987 Act whereas; the petitioner namely, Gyanchand Daga had been appointed as Director (Marketing) of the aforesaid factory by the Government and he was legally the occupier of the aforesaid factory. The aforesaid inspector of factories found several violations of mandatory provisions of Factories Act as well as rules framed by the Bihar Government and accordingly, he sent the inspection report dated 07-07-2006 to the of Indian Oil Corporation Ltd with direction to rectify the irregularities but the aforesaid irregularities were not removed as per law and accordingly, he prayed before the concerned court for taking cognizance against the petitioner and above-said Sri S.A. Khan under the appropriate Sections of Factories Act.
4. Counter affidavit has been filed on behalf of the opposite parties denying the pleadings of the petitioner. Patna High Court Cr.Misc. No.29648 of 2009 (5) dt.16-04-2012
5. Having heard both the parties on the point of admission, these petitions are being disposed of at the stage of admission itself, with consent of both the parties.
6. Learned Senior Counsel Sri K.D. Chatterjee appearing for the petitioner submits that in Complaint Case No. 26C2 of 2006, the cognizance has been taken under Section-92 of Factories Act for violation of Section-62 of Factories (amended) 1987 Act read with rules 80 & 59C of Bihar Factories Rules, 1950. He, further submits that Section-92 of the Factories Act says that only occupier and Manager of the factory are liable for contravention of provisions of Factories Act. It is further contended by him that if a factory is considered as a factory owned and controlled by the Government, the person appointed to manage the affairs of the factory by the Government shall have to be deemed to be the occupier of the aforesaid factory. It is further contended by him that if the Government has the real ultimate controlled over the affairs of the factory, the aforesaid factory would be deemed to be controlled by the Government and in that situation, Section- 2(N)(iii) would apply which says that in the case of a factory owned or controlled by the Central Government or any Patna High Court Cr.Misc. No.29648 of 2009 (5) dt.16-04-2012 State Government or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or local authority, as the case may be, shall be deemed to be the occupier. It is further contended by him that Section-41C of the Factories Act, 1948 casts duty upon the occupier of the factory to maintain the records etc. It is contended by him that Official Complaint Case No. 25C2 of 2006 has been filed for violation of Section-41C of Factories (amended) 1987 Act read with rules 62 (N)(H) and 62 (O)(H) and, therefore, for violation of the aforesaid provisions only occupier of the factory is responsible. He referred a decision reported in (1998) 5, SCC 738, the Indian Oil Corporation of India Ltd Vs Chief Inspector of Factories and others with the Indian Oil Corporation of India Ltd Vs Labour Commissioner and others in which it has been held by the Apex Court of this country that as the factories run by Indian Oil Corporation of India Ltd are effectively and really owned and controlled by the Central Government and, therefore, they fall within the purview of Clause (3) and not Clause (2) of the first Proviso to Section 2(N) of Factories Act. It is further contended by him that in Patna High Court Cr.Misc. No.29648 of 2009 (5) dt.16-04-2012 view of the aforesaid decision, it is explicit clear that the company of the petitioner is, admittedly, owned and controlled by the Central Government, so, Section-2(N)(iii) shall apply in the present case and as per the aforesaid section, the occupier means the person or persons appointed to manage the affairs of the factory by the Central Government or State Government or the local authority, as the case may be, shall be deemed to be the occupier. It is also contended by him that at the relevant time, the petitioner was neither manager nor occupier of the aforesaid factory and as a matter of fact, one Subhash Prasad was occupier of the aforesaid factory. It is pointed out by him that according to complaint Case, the factory premises was inspected on 29-05-2006 but before the above-said inspections, one Subhash Prasad had already taken the charge of occupier of the aforesaid factory. It is further contended by him that the aforesaid Subhash Prasad was appointed as occupier on 24-04-2006 and the information regarding the aforesaid appointment as well as taking of charge had already been sent to Inspector of Factories, Begusarai on 10-05-2006 which is evident from perusal of Annexures-2 & 3 to this petition. Patna High Court Cr.Misc. No.29648 of 2009 (5) dt.16-04-2012
7. It is further contended by him that in a case reported in Sri Suresh Kumar Jalan Vs The State of Bihar in 2011 (4) PLJR 22 , this court has already held that only occupier and manager can be prosecuted under Section-92 of the Factories Act for violation of provisions of the aforesaid Act. It is further contended by him that the aforesaid view of this court is based on a decision reported in Sri Ajeet Narain Bhasker & Ors. Vs The State of Bihar, 1983 PLJR 274.
8. It is further contended by him that admittedly, the petitioner was Director (Marketing) and at the relevant time, he was posted at Bombay, so, he had no control over the day-to-day affairs of the factory and furthermore, the petitioner was neither manager nor the occupier of the aforesaid factory, so, the petitioner cannot be prosecuted in the above-said cases but the learned Chief Judicial Magistrate, Begusarai without giving any heed towards the above-said facts, passed the impugned orders which are not in accordance with law, and are liable to be quashed.
9. It is further contended by him that Annexure-6 to this petition reveals that when the above-said company got notice about the so-called irregularities in the above-said Patna High Court Cr.Misc. No.29648 of 2009 (5) dt.16-04-2012 factory, the deficiencies were immediately removed and the inspector of factories as well as other higher officials were properly informed and having taken the note of the aforesaid facts, the inspector of factories (the complainant) sent a letter to Chief Inspector of Factories, Government of Bihar, Patna for withdrawal of the above-said complaint cases. It is further contended by him that when the deficiencies as pointed out by the inspector of factories, had already been removed and the inspector of factories had already prayed before the concerned officials for withdrawal of the above-said complaint cases, there is no necessity to continue the prosecution of the petitioner because the continuation of the proceeding of above-said complaint cases would be nothing but only an abuse of process of law.
10. Learned counsel appearing for the petitioner relied upon a decision reported in (2006) 16 , SCC 1 (Manoj Sharma Vs The State of Bihar & Ors.) in which it has been held by the Hon'ble Supreme Court that even if in non-compoundable offences, the court can exercise its power under Section-482 of the Cr.P.C. though the court has to see the nature as well as impact of the offence on Patna High Court Cr.Misc. No.29648 of 2009 (5) dt.16-04-2012 the society.
11. Having relied upon the aforesaid decision, it is submitted on behalf of the petitioner that filing of withdrawal petition by the inspector of factories amounts to compounding of the offence and, therefore, even if the offence in question, is not compoundable in nature, this court can exercise its power vested under Section-482 of the Cr.P.C. to prevent the abuse of process of law.
12. On the other hand, Sri Mayanand Jha, Addl. P.P. appearing for the state submits that no doubt, the case of the petitioner comes under the purview of Section-2(N)(iii) of Factories Act but as a matter of fact, at the relevant time, the petitioner was occupier of the aforesaid factory and moreover, the aforesaid question is a question of fact which can be investigated only in course of trial. It is further contended by him that according to Annexure-3 to this petition, the Government of India notified Sri Subhash Prasad, Senior Refinery Co-ordinator of the Indian Oil Corporation Ltd as an occupier on 10-07-2006 , i.e. before the date of occurrence of the present case. It is further contended by him that it is an admitted position that previous Director, namely, Sri U.P. Singh had already Patna High Court Cr.Misc. No.29648 of 2009 (5) dt.16-04-2012 relinquished his charge before the inspection of the inspector of factories and the aforesaid Subhash Prasad was notified as occupier vide notification of Government of India dated 10th July, 2006 and, therefore, between the above-said period of handing over charge by above-said U.P. Singh and the publication of the above-said notification, the petitioner being Director of Marketing Department was the occupier of the aforesaid premises and, therefore, he cannot escape from his liability. It is further contended by him that so far as decision reported in (2008) 16 SCC 1 is concerned, the same is not applicable in the present case because admittedly, the offences under Factories Act have been made in the larger interest of the society and permission for compounding the aforesaid offences cannot be granted by the court by exercising its jurisdiction under Section-482 of the Cr.P.C.
13. Having heard contentions of both the parties, I have gone through the record as well as decisions cited on behalf of the petitioner.
14. Admittedly, earlier one Sri Dr. N.G. Kannan, Director (Marketing), was an occupier of the aforesaid factory under Section-2(N) of Factories (amended) 1987 Patna High Court Cr.Misc. No.29648 of 2009 (5) dt.16-04-2012 Act whereas; when the inspection was made, the petitioner was Director (Marketing) of the aforesaid factory. Furthermore, Annexure-2 to this petition reveals that the aforesaid company gave information to inspector of factories, Begusarai on 10-05-2006 to this effect that Sri Subhash Prasad had taken over charge of Barauni Marketing Terminal as Senior Refinery Co-ordinator from one, Sri U.P. Singh. Therefore, admittedly, prior to 10-05- 2006, the aforesaid U.P. Singh had already given charge to aforesaid Subhash Prasad. The above-said U.P. Singh was earlier notified by the Government as occupier of the aforesaid factory but Annexure-2 to this petition reveals that the aforesaid Subhash Prasad took charge from above-said U.P. Singh as a Senior Refinery Co-ordinator and furthermore, Photostat copy of form No. 3 shows that the proposal for appointment of Sri Subhash Prasad as occupier of the aforesaid factory was made on 24-04-2006 but Annexure-3 to this petition reveals that the aforesaid Subhash Prasad, Senior Refinery Co-ordinator, Indian Oil Corporation Ltd was appointed as occupier in place of Sri U.P. Singh, Senior Refinery Co-ordinator on 10-07-2006 i.e. after inspection of the aforesaid factory. Therefore, it is Patna High Court Cr.Misc. No.29648 of 2009 (5) dt.16-04-2012 explicit clear that on 29-05-2006, neither the aforesaid U.P. Singh nor Subhadh Prasad was occupier of the aforesaid factory and it appears that being Director (Marketing) the petitioner was occupier of the aforesaid factory though it is a matter of deeper investigation which is only possible in course of trial. Therefore, in view of the aforesaid discussions, I am of the opinion that these petitions do not have any merit and are liable to be dismissed at the stage of admission itself.
15. In view of the aforesaid discussions, both the above-said petitions stand dismissed at the stage of admission itself.
(Hemant Kumar Srivastava, J) A.K.V./-