Calcutta High Court (Appellete Side)
Satyanarayan Dangayach vs The State Of West Bengal & Anr on 7 April, 2016
Author: Shib Sadhan Sadhu
Bench: Shib Sadhan Sadhu
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Shib Sadhan Sadhu, J.
C.R.R. No.500 of 2015 Satyanarayan Dangayach ... Petitioner Versus The State of West Bengal & Anr..
...Opposite Parties.
For the Petitioner : Mr.Sekhar Basu
Mr.Abhijit Boral
Mr.Anandodaya Mishra
Ms.Ahana Sikdar
For the O.P.No.1 : Mr. Jayanta Banerjee
Ms. R. Basu Roy
For the State : None appeared.
Heard on : February 19, 2016.
Judgment on : April 7, 2016.
Shib Sadhan Sadhu, J.
1. The petitioner by filing the present petition seeks to invoke the inherent power of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. for brevity) to quash the entire proceedings being complaint case No.65C of 2014 under Section 92/96A of the Factories Act, 1948 (hereinafter referred to as the Act) including the order dated 27.01.2015 pending before the Court of Chief Judicial Magistrate, Howrah.
2. The factual background is that the O.P. No.2 has filed the complaint being case No.65C of 2014 before the Court of Chief Judicial Magistrate, Howrah on 27.01.2014 alleging commission of offence under Section 92 and 96A of the Act for contravention of the provisions of the West Bengal Factories Rules, 1958 against the present petitioner/accused and another. The Learned Chief Judicial Magistrate on perusal of the complaint took cognizance and issued process against the petitioner on 27.01.2014 fixing the date of appearance on 20.03.2014. Learned Advocate representing the petitioner entered appearance on 20.03.2014 and sought for permission for surrender of the petitioner on a subsequent date which was granted and the case was adjourned to 11.08.2014 for appearance. On that date the Advocate representing the petitioner moved an application under the provision of Section 101 of the Act and the case was adjourned to 27.11.2014. The case was further adjourned to 27.01.2015 on the personal ground of the Advocate representing the petitioner. On 27.01.2015 the application filed by the petitioner under Section 101 of the Act was summarily rejected primarily on technical grounds by the Learned Magistrate and he directed issuance of non-bailable Warrant of Arrest against the present petitioner.
3. Mr. Sekhar Basu, Learned Senior Counsel appearing on behalf of the petitioner argued that the petitioner has been described in the compliant simply as the 'Occupier' of the factory without specifying the nature of liability and the role of the petitioner as 'Occupier' of the factory. He submitted that Section 2(n) of the Act provides that 'Occupier' of a factory means the person who has ultimate control over the affairs of the factory. Ultimate control imposes ultimate obligation on the 'Occupier' in respect of whatever happens in the factory and when criminal liability arises out of official status of an officer, indispensable legal requirement is to describe the officer with the official status he held at the time of commission of any offence. Any deficiency in such description would result in the rejection of the complaint. Since in the present complaint it is not expressly stated in categorical words as to how the Occupier was responsible for the alleged contraventions, the complaint is liable to be quashed. He placed reliance on the decision reported in 1987 C Cr L.R. (CAL) 301 (Ashoke Kumar Jajodia & Ans. V. The State of West Bengal) in support of such contention.
4. Mr. Basu continued to contend that the complaint has been filed by suppressing the very crucial aspect of compliance by the petitioner's company which in fact was categorically informed under letter dated 30.12.2013 communicating the measures adopted with supporting document to the O.P. No.2 who had issued a report dated 20.12.2013 tabulating certain contraventions at the factory premises of Syntex Industries Limited under the heading "measures to be adopted". Although the company adopted all the measures and corrected the contraventions within ten working days and although the O.P. No.2 received the compliance report dated 30.12.2013 but he neither took into account such compliances nor did he bother to verify the measures adopted and filed the complaint on 27.01.2014 in the most malafide manner suppressing the factum of receipt of such letter dated 30.12.2013. He further contended that the O.P. No.2 being a public servant enjoys an exemption from adducing oral evidence in terms of Proviso (a) of Section 200 Cr.P.C. and taking that advantage he suppressed the material fact of compliance by the petitioner's company and thereby the Learned Magistrate was prevented from making judicious consideration of the petition of complaint. Had the complainant stated in his complaint about the said compliance of all the requirements, the Learned Magistrate might have dismissed the complaint for absence of 'facts which constitute such offence'. Therefore, according to him, the complaint case is liable to be quashed for such vital lapse.
5. Mr. Basu further argued that it is trite law that at first instance a bailable warrant should be issued and if the Warrantee fails to appear before the Court, then only the non-bailable warrant should be issued. But in the instant case, the Learned Magistrate issued a non-bailable warrant at the first instance simultaneously with the rejection of the application under Section 101 of the Act filed by the petitioner without giving him any opportunity to be present before the Court and thereby deprived the petitioner of his most precious right of personal liberty which is impermissible in law. Therefore, the impugned order dated 27.01.2015 is not sustainable and is liable to be set aside. He referred to the decision of the Hon'ble Supreme Court reported in (2007) 12 Supreme Court Cases 1 (Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors.) in order to substantiate such submission. He, therefore, concludingly submitted that the instant Criminal proceeding is an abuse of process of law and is liable to be quashed.
6. Mr. Jayanta Banerjee, Learned State Counsel, on the other hand, submitted that by way of the Factories Amendment Act, 1987 the definition of 'Occupier' as appearing in Section 2(n) of the Act was amended by Section 2(iii)(a) of the said Amendment Act and omitted the portion - "and where the said affairs are entrusted to a managing agent, such agent shall be deemed to be the 'Occupier' of the Factory". Further it was inserted to the supplement of the definition of 'Occupier' by Section 2(iii)(b) by the said Amendment Act to the effect that in the case of a Company, any one of the Directors shall be deemed to be the 'Occupier'. Therefore, in view of the said Amendment by omitting and inserting, the definition of the 'Occupier' has been changed from its origin and in view of Section 2(n) (ii) one of the Directors shall be deemed to be the 'Occupier' of the Factory in question. Mr. Banerjee further submitted that the decision cited by Mr. Basu namely Ashoke Kumar Jajodia & Anr. V. The State of West Bengal (Supra) was rendered on 20.05.1987 which was good law at that point of time on the facts and circumstances of the said case only because in that complaint it was not specifically mentioned who has committed the offence - whether the Managing Agent or the Managing Director. But the instant case has been filed after coming into force of the aforesaid Amendment Act on 1st December, 1987 and in view of such amended provision of law only one of the Directors of the Company shall be deemed to be 'Occupier' of the factory. Since the present petitioner declared himself to be the 'Occupier' of the factory by submitting statutory application in prescribed form, there is no need to explain further in the complaint in details how the petitioner became the occupier of the factory. Therefore, the present petitioner was in ultimate control over the affairs of the factory at the time of commission of the alleged offence. He cannot make out a third case that he was not the 'sole occupier' of the factory and only for absence of such explanation in the complaint the same cannot be quashed.
7. Mr. Banerjee further submitted that the factory was visited by the Assistant Director/Inspector of Factories (Chemical), West Bengal on three occasions on 27.01.2012, 31.07.2013 and 17.12.2013 in consideration of the major hazards involved due to LPG storage and handling and to persuade the management to adopt remedial measures for prevention and mitigation of the hazards. After each inspection reports/notices were issued to the management for implementation of the remedial measures. But the management did not care to rectify the violations and hazards on repeated persuasion for a period of two (2) years. The letter dated 30.12.2013, the alleged compliance/implementation report is not acceptable as the same was not supported by any documentary evidence like photographs, minutes of the meetings of the Safety Committee signed by the Committee Members, Health and Safety Policy signed by the occupier etc. Moreover, the violations continued in the factory throughout the year 2012 and 2013 in spite of repeated reminders and persuasion during the inspections made. Since the offence mentioned in the report is continuing offence, the report dated 20.12.2013 was served upon the petitioner being the 'Occupier' of the factory to stop the contravention for the purpose of future safety and security. Therefore, non-mention of the alleged compliance/implementation report dated 30.12.2013 in the petition of complaint cannot be said as suppression of the material facts. By the said Inspection Report dated 20.12.2013 the O.P. No.2 did not call for any explanation from the petitioner for the contravention nor did he ask him to submit any reply and it was served for their future guidance for safety and protection of the society and public and therefore, the reply to such report is not at all material for initiation of the criminal proceeding. Thus according to Mr. Banerjee, the complaint is not liable to be quashed on such count.
8. I have carefully considered the rival contentions put forward by the Learned Counsel appearing for the parties. I have perused the written arguments filed by them. I have also gone through the entire proceedings with meticulous care. Further I have perused the decisions cited by Mr. Basu.
9. To appreciate the effect of change in the definition of the 'Occupier' brought by the Factories (Amendment) Act, 1987, I think it appropriate in this context to refer to the decision of the Hon'ble Supreme Court reported in (1996)6 Supreme Court Cases 665 (J.K.Industries Ltd. & Ors. v. Chief Inspector of Factories & Boilers & Ors.). In that decision Their Lordships held - "Prior to 1987, Section 2(n) of the Act which defined "occupier of a factory' had necessarily to be read along with Section 100 of the Act to find out an occupier under different situations. There was no compulsion under Section 100(2) that where the occupier of a factory was a company, only a director should be nominated as an occupier. Some of the companies, taking advantage of the option as contained in the proviso to Section 100(2) of the Act and noticing the stringent provisions for punishment for breach of some of the provisions of the Act, instead of nominating a director, as the occupier, used to nominate some other employee or officer as an occupier of the factory and, thus, whenever any violation of the Act was committed, it was that employee or officer, who was subjected to penalty and punishment and not the Directors or any one of them. In M.C.Mehta (II) v. Union of India / [(1986) 2 SCC 325] case, the Supreme Court noticed the "escape route" which had been carved out by the Directors of the Company, which owns or runs the factory, and opined that if there was negligence in looking after the safety requirements, in a hazardous industry in particular, even the Chairman and the Managing Director besides the Board of Directors must be held responsible and liable. It was, thereafter, that Parliament stepped in and passed the Amendment Act 20 of 1987. Their Lordships further held - "Proviso (ii) of Section 2(n) as introduced by the Amending Act of 1987, makes it possible to reach out to a director of the company itself, who shall be prosecuted and punished for breach of the provisions of the Act, apart from prosecution and punishment of the Manager and of the actual offender. The proviso, by making one of the directors of the company responsible for proper implementation of the provisions of the Act, to a great extent ensures that more care is taken for the maintenance of the factory and various safety measures prescribed under the Act for the health, welfare and safety of the workers are not neglected. In the case of a company, the main part of Section 2(n) would not be workable unless that provision is read along with proviso (ii). The definition of an occupier under Section 2(n) is of general application and different situations have been covered by the legislature only in different provisos appended to Section 2(n). These situations were, to a large extent earlier covered by Section 100 of the Act and with the deletion of Section 100, it became imperative to take care of different situations dealt therein, by enacting various provisos to Section 2(n). Of course, the expression "shall be deemed to be an occupier" in second proviso to Section 2(n) indicates the creation of a legal fiction but it is wrong to presume that such legal fiction can come into play only where the substantive provision of Section 2(n) is not attracted. The deeming provision does not override the substantive provision of Section 2(n) but clarifies it. Therefore, proviso (ii) is not ultra vires the main provision of Section 2(n) and as a matter of fact there is no conflict at all between the main provision of Section 2(n) and proviso (ii) thereto. Both can be read harmoniously and when so read in the case of a company, the occupier of a factory owned by a company would mean "any one of the directors of the company who has been notified/identified by the company to have ultimate control over the affairs of the factory" and where no such director has been identified, then for the purposes of prosecution and punishment under the Act, the Inspector of Factories may initiate proceedings against any one of the directors as the deemed occupier."
Thus it is apparent that any one of the Directors of the petitioner's Company who has been informed by the Company to have ultimate control over the affairs of the company would be the "Occupier" within the meaning of Section 2(n) of the Act. It is further apparent that if no such Director has been identified as the 'Occupier' the Inspector of Factories may initiate proceedings against any one of the Directors of the Company as the deemed 'Occupier'. Whether or not the present petitioner is the notified/identified by the company having the ultimate control over the affairs of the factory is purely a question of fact which could only be decided during trial. As such, absence of details in the petition of complaint as to the role of the petitioner as an 'Occupier' cannot justify quashment of the complaint. Since the decision in the case of Ashoke Kumar Jajodia & Anr. Vs. State of West Bengal (supra) relied on by Mr. Basu was rendered on 20.05.1987 i.e., prior to coming into force of the Factories (Amendment) Act, 1987 with effect from 01.12.1987, it can have no application in the instant case.
10. Coming to the contention raised on behalf of the petitioner regarding suppression of material fact of compliance by the petitioner's company informed to the O.P. No.2 under letter dated 30.12.2013, I would like to refer to a decision of the Hon'ble Supreme Court laying down certain principles in respect of the exercise of jurisdiction under Section 482 of Cr.P.C.
11. In Rajiv Thapar and Others Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330, The Hon'ble Supreme Court has been pleased to observe that:-
" The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."
12. Further in the case of Sonu Gupta V. Deepak Gupta & Ors. reported in (2015)3 Supreme Court Cases 424 the Hon'ble Supreme Court has been pleased to observe that ".................at the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the Learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not."
13. The entire allegations against the petitioner as stated in the petition of complaint as placed on record, reveal that the petitioner is the 'Occupier' of the Factory known and named as Sintex Industries Limited, Plastic Division at Uluberia Industrial Growth Centre in the District of Howrah where dangerous operation and hazardous process for the manufacturing of plastic water storage products was found carried out, that he had not constituted any Safety Committee, that he had not provided any Material Safety Data Sheet and there are other allegations of contravention of the various provisions of the Act and the Rules made thereunder. Therefore, it is evident that there are sufficient materials which established prima facie commission of an offence.
14. It is needless to mention that the defence taken by the petitioner relates to disputed facts truthfulness of which cannot be determined at this stage and it is for him to establish such defence by leading cogent evidence at the time of trial.
15. It is settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction under Section 482 Cr.P.C. Since the foundation of criminal offence is laid against the accused/petitioner for the offence complained of against him under the Factories Act, therefore, this Court is of the opinion that, prima facie, offence under the Factories Act is made out against the petitioner.
16. In the case of Indermohan Goswami & Anr. v. State of Uttaranchal & Ors.
(supra) cited by Mr. Basu, Learned Senior Counsel appearing for the petitioner, the Hon'ble Supreme Court observed in the following paragraphs as follows:-
"51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the Courts have to be extremely careful before issuing non-bailable warrants.
53.Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:
. it is reasonable to believe that the person will not voluntarily appear in court; or . the police authorities are unable to find the person to serve him with a summon; or . it is considered that the person could harm someone if not placed into custody immediately.
55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to.
Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.
56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided."
17. Looking into the impugned order dated 27.01.2015 it appears that the Learned Magistrate issued non-bailable warrant of arrest against the accused/petitioner considering the gross violation of the order dated 20.032014 when it is found that summons was received by the accused one year ago. From the order dated 20.03.2014 it appears that on receipt of the summons the accused/petitioner appeared through his Advocate who undertook that the accused would surrender on a subsequent date, if permitted and such permission was granted. But the accused did not appear on 27.01.2015 and therefore, the warrant of arrest was issued against him. Thus it is apparent that the Learned Magistrate issued non- bailable warrant against the accused/petitioner at the first instance without giving him another opportunity to appear before him or without issuing bailable warrant of arrest to secure his attendance. It further appears from the aforesaid impugned order that the Learned Magistrate also rejected the application filed by the accused on 11.08.2014 under Section 101 of the Act without considering the same on merit. Therefore, the impugned order dated 27.01.2015 cannot be sustained and it is accordingly set aside.
18. The Learned Magistrate is directed to give another opportunity to the accused/petitioner to appear before him. He is further directed to dispose of the application under Section 101 of the Act after hearing both the parties and by passing a reasoned order. However, it is made clear that the criminal proceeding being complaint case No.65C of 2014 would continue against the petitioner/accused and another named in the petition of complaint. No order as to costs.
19. The Revisional Application is thus disposed of accordingly.
20. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.
(Shib Sadhan Sadhu, J.)