Karnataka High Court
Vijay S Katkar vs The Deputy Director Of Factories on 7 March, 2024
1 CRL.RP.NO.100238/2014
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION No.100238/2014
BETWEEN
1 . SHRI. VIJAY S. KATKAR,
M/S. ASHOK IRON WORKS PVT. LTD,
PLANT NO.2, PLOT NO.67-71 & 95-96,
MACHE INDUSTRIAL AREA,
MACHHE VILLAGE, BELAGAVI-590014.
2. M. N. LINGARAJU,
CHANDRASHEKAR
MANAGER,
LAXMAN
KATTIMANI M/S. ASHOK IRON WORKS PVT. LTD,
PLANT NO.2, PLOT NO.67-71 & 95-96,
Digitally signed by
CHANDRASHEKAR
LAXMAN KATTIMANI MACHE INDUSTRIAL AREA,
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
Date: 2024.03.12
MACHHE VILLAGE, BELAGAVI-590014.
16:01:48 +0530
...PETITIONERS
(By SRI. SOURABH HEGDE, ADV. FOR
SRI. SHREEVATSA S.HEGDE, ADVOCATE)
AND
THE DEPUTY DIRECTOR OF FACTORIES,
FIRST DIVISION, NO. 17,
DATTA PRASAD BUILDING,
K. R. LAYOUT, CLUB ROAD, BELAGAVI.
...RESPONDENT
(By SMT.GIRIJA S.HIREMATH, HCGP)
2 CRL.RP.NO.100238/2014
THIS CRIMINAL REVISION PETITION IS FILED U/S. 397
R/W. 401 OF CR.P.C, PRAYING THIS COURT TO, SET ASIDE THE
JUDGMENTS OF CONVICTION DATED 10.09.2012 IN
C.C.NO.1250/2008 PASSED BY THE JMFC II-COURT, BELAGAVI,
CONFIRMED IN JUDGMENT DATED 01.07.2014 PASSED BY THE
V ADDL. DISTRICT AND SESSIONS JUDGE, BELGAUM IN
CRL.A.NO.182/2012.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
12.12.2023, COMING ON FOR PRONOUNCEMENT OF
ORDER/JUDGMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition filed under Section 397 r/w Section 401 Cr.P.C is by the accused Nos.1 and 2, challenging their conviction and sentence imposed by the trial Court for the offence punishable under Section 92 of the Factories Act, which came to be confirmed by the Sessions Court by dismissing the appeal filed by them.
2. For the sake of convenience, the parties are referred to by their rank before the trial Court.
3. The Deputy Director of Factories filed a complaint against accused Nos.1 and 2 for the offence punishable under Section 92 of Factories Act, alleging that accused No.1 3 CRL.RP.NO.100238/2014 is the occupier and accused No.2 is the Manager of M/s Ashok Iron Works Private Ltd. (for short 'the factory') situated at Machche Industrial Area, Machche Village, Belgaum. It is engaged in manufacture of castings with caste iron using electricity. It comes under the jurisdiction of Deputy Director of Factories.
3.1 On 16.07.2008, at about 10.45 a.m, at the moulding division one Bharath Kumar B.Mahath (for short 'deceased'), a contract workman was engaged in tightening the bolts of moulding box used for collecting molton metal. At that time one Shankar N.Chauhan, Core setter, who was working with him was shifting the cope i.e., top halve of moulding box No.2 with the help of 15 tonne crane. However, crane touched the cope (top halve) of moulding box No.46 and it slanted and fell on Bharath Kumar from his back side. He suffered grievous injury to his head and later died.
4 CRL.RP.NO.100238/2014
3.2 On 16.07.2008, Sri.Sridhar, Deputy Manager Safety informed the complainant telephonically about the incident and that injured worker has died. He submitted Form No.17. Accordingly, on 16.07.2008, complainant visited the factory and conducted enquiry. On 17.07.2008, he recorded the statements of concerned witnesses viz., Shankar N Chauhan and Prashanth Neelajkar. After concluding the enquiry, complainant has filed the complaint.
4. The trial Court has taken cognizance and secured the presence of accused Nos.1 and 2.
5. Accused have pleaded not guilty and claimed trial.
6. In order to prove the allegations against the accused, on behalf of the complainant, 3 witnesses are examined as PW-1 to 3 and Ex.P1 to 28 are marked.
7. During the course of their statement under Section 313 Cr.P.C, accused have denied the incriminating evidence led by the complainant.
5 CRL.RP.NO.100238/2014
8. Accused have not led any defence evidence.
9. Vide the judgment and order 10.09.2012, the trial Court convicted the accused and sentenced them to pay a fine of Rs.50,000/- each, in default to undergo SI for a period of three months.
10. Accused challenged the same before the Sessions Court in Crl.A.No.182/2012, which came to be dismissed and thereby confirming the judgment and order of the trial Court.
11. Being aggrieved by the same, the accused have come up with this revision petition, contending that the impugned judgments and orders are contrary to law, facts and procedure. They are self contradictory and do not satisfy the mandatory requirement of criminal jurisprudence. The trial Court has attached much importance to the evidence of PW-1, who is not an eye witness. The impugned judgments and orders are based on inferences, surmises and conjectures. Both Courts have failed to appreciate that proof 6 CRL.RP.NO.100238/2014 of negligence under the Factories Act is different from proof under penal law. They have based their judgments upon unsubstantiated statement of PW-2 and erroneously held that accused have admitted his evidence.
12. After holding that prosecution has failed to bring out any evidence about the manner of accident, but at the same time held that the prosecution has successfully brought home guilt to the accused. The trial Court has placed reliance upon Ex.P11 to convict the accused, nevertheless the same does not form part of questionnaire prepared for the answers from accused under Section 313 Cr.P.C. After observing that the admissions given in Ex.P11 were withdrawn by the accused by contesting the claim of the complainant, it has erred in holding that the admissions operate against the accused. Viewed from any angle, the impugned judgment and order are not sustainable and pray to allow the petition, set aside the impugned judgment and order of the trial Court and Sessions Court.
7 CRL.RP.NO.100238/2014
13. In support of his arguments, learned counsel for accused Nos.1 and 2 has relied upon the following decisions:
(i) Mohammed Azeez Vs. Ravindran P
(Mohammed Azeez)1
(ii) Vineet Agarwal and Anr. Vs. State of
Karnataka (Vineet Agarwal)2
(iii) K.Rajashekhar Reddy and Anr. Vs. State of Karnataka and Anr.(K.Rajashekar Reddy)3
14. On the other hand learned High Court Government Pleader supported the impugned judgment and order of the trial Court as well as Sessions Court and sought for dismissal of the petition.
15. Learned High Court Government Pleader has relied upon the following decision:
(i) Patrick George Yadauga Vs. State of
Karnataka (Patrick)4
1
Crl.P.Nos.2570/2021 c/w 2594/2021
2
Crl.P.No.7688/2019
3
Crl.P.No.102567/2022
4
Crl.RP.No.2225/2012
8 CRL.RP.NO.100238/2014
16. Heard elaborate arguments of both sides and perused the record.
17. It is not in dispute that at the relevant point of time accused were the occupier and Manager of the factory in question and under the Factories Act, they are responsible for the day to day working and management of the same and they are liable under the Factories Act for any violation and non-compliance. It is also not in dispute that PW-1 Shankar N. Chauhan was working as Core Setter in moulding division and on 16.07.2008, deceased who was a contract worker was assisting PW-1 Shankar N. Chauhan as the regular worker Ramalinga Patil did not come for work. On that day, in the first shift, both of them were working in the core setting area. Deceased was tightening the bolts. PW-1 Shankar N. Chauhan in addition to doing core setting was also shifting the moulding boxes using crane. According to the complainant he was not trained to operate the crane and the trained crane operator was not engaged. It has come in the evidence that while deceased was tightening the bolts, 9 CRL.RP.NO.100238/2014 PW-1 Shankar N.Chauhan brought one mould through crane and when he was lowering it, it touched another mould and it fell on deceased as a result of which his head was caught in between two mould boxes and he sustained crush injuries. The fact of accident was intimated to the complainant telephonically and in this regard accused No.2 M.N.Lingaraju has submitted Form No.17 as per Ex.P2. Upon receipt of the said report, the complainant who is examined as PW-2 has visited the factory, inspected the spot, recorded the statement of witnesses and also enquired with the management about the incident. He has recorded the inspection report in the inspection register. Again on 17.07.2008, he has visited the factory and collected documents. Though the deceased was subjected to post mortem examination and complainant has requested for PM report, the same has not been furnished.
18. During the course of his evidence, complainant who is examined as PW-2 has reiterated the enquiry conducted by him including the fact of recording the 10 CRL.RP.NO.100238/2014 statements of eye witnesses and other concerned persons. After conducting the enquiry, he has come to a definite conclusion that the floor area in the moulding department was not even and leveled, as a result of which when cope and drag were kept on the floor, they got imbalanced and fell on the deceased injuring him. The mould boxes were not kept with sufficient space in between so as to prevent one box falling on the other resulting in injury to the workers. The crane was not operated by the trained operator, but by the core setter themselves. The crane was also not properly maintained. The pendant box of the crane was not in good condition and buttons were also not operating smoothly. The crane was also not provided with Hooter/Siren in order to caution the personnel working nearby. The crane was also not having emergency stop button to stop the load instantly at the particular desired location.
19. During the course of his evidence, complainant (PW-2) has reiterated the complaint averments. Except suggesting that there was no impediment to record the 11 CRL.RP.NO.100238/2014 statement of witnesses on 16.07.2008 and that accident has occurred due to the negligence of deceased himself, the evidence of complainant has practically remained unchallenged. So far as not recording the statement on 16.07.2008 is concerned, PW-2 has stated that as on that day, the worker had died, the other workers were not available at the spot. Therefore, he has recorded their statement on the next day. He has denied the suggestion that without waiting for receipt of PM report, he has hurriedly filed the charge sheet.
20. PW-1 Shankar N. Chauhan is the eye witness to the incident. He was the one who was working with deceased and in fact deceased was assisting him. He has deposed as though he was not present when the accident took place. During his cross-examination, he has stated that when the incident took place, he had gone to have tea and after hearing the commotion, he came back and saw the deceased injured. He has stated that complainant took his LTM to a blank paper at the factory office. However, in the previous 12 CRL.RP.NO.100238/2014 sentence, he has stated that he did not know the contents of the documents to which his LTM was taken.
21. Having regard to the fact that the accident took place in the core setting area and he was the one who was working as core setter and deceased was assisting him and it is the specific case of the complainant that he was the one who was operating the crane when the incident took place, if PW-1 Shankar N.Chauhan was not present then he has to disclose who was the person who was operating the crane. Complainant as the Deputy Director of Factories and as a responsible Officer has visited the spot immediately after the incident and made enquiry and recorded the statements of eye witnesses. It is absured to suggest that he would take LTM of PW-1 Shankar N. Chauhan to blank paper and fill it up subsequently. It appears since PW-1 Shankar N. Chauhan is an employee of the factory working under the accused, to help them he has come up with such an evidence. 13 CRL.RP.NO.100238/2014
22. In fact Ex.P11 which is the reply given by the accused to the investigation report at Ex.P7 submitted by the complainant is contrary to the defence taken by the accused at the trial. In Ex.P11, while regretting the unfortunate death of deceased, the accused have admitted the short falls pointed out by the complainant in the investigation report and undertaken to correct them and they have stated the measures taken by them viz.,
(i) To level the floor with RCC so as to keep the mould boxes on clean and leveled platform.
(ii) Hereinafter the core setting department will work only one set of mould boxes. No addition mould boxes will be brought near the working area unless one set of mould box is completed in all respect and it will be monitored by the supervisors.
(iii) Though it is claimed that the core setters are trained systematically in the operation of EOT cranes, henceforth it will be ensured that only trained and competent persons will operate the crane.
(iv) They have seriously reviewed the maintenance,
practices and now the EOT crane is being
maintained in good condition. It is fixed with new 14 CRL.RP.NO.100238/2014 buttons which provides smooth operation. Also the safety checks are initiated by safety and maintenance department to comply with the same.
(v) The crane is provided with Hooter/Siren to give caution to the working persons in the vicinity.
(vi) Emergency stop button is fixed on the pendant box to stop the crane in case of emergency situation.
23. Thus, through the testimony of PW-1 and 2, it is established that the accident in question occurred on account of not properly maintaining the floor area and the crane and that the crane was operated by untrained person and thereby the accused have violated the provisions of Rule 84, which is punishable under Section 92 of the Factories Act.
24. In the present case PM report is not produced and marked. A suggestion is made to PW-2 that he did not wait till receipt of PM report and rushed to file the complaint. Though the complainant has requested for the PM report, it has not been furnished to him. As per Ex.P12, the Medical Director of ESI Hospital, Belagavi has written a letter to the 15 CRL.RP.NO.100238/2014 complainant stating that as per the report given by the factory and as per the medical records, deceased sustained crushed injuries to his head while working in the factory and died. As per Ex.P13, the PSI of Belagavi Rural P.S has written a letter to the complainant stating that in respect of the said incident, no case is registered in the said P.S as neither the factory authorities nor relatives of the deceased have given any complaint.
25. It appears either the dead body is not subjected to PM examination or it is not made available to the complainant for obvious reasons. However, fact remains that deceased sustained injuries while working in the factory in question and succumbed to the injuries while being taken to the hospital. In the circumstances it is proved by the complainant that the death of deceased was on account of head injuries sustained and it does not lie in the mouth of the accused to dispute the same.
16 CRL.RP.NO.100238/2014
26. It is not correct for the accused to contend that Ex.P11 is not referred to in the 313 statement. The same is referred to in question No.3. Moreover it is the reply given by the accused undertaking to comply with the necessary requirements.
27. Learned counsel for accused relying upon Section 107 of the Factories Act submitted that since the complainant has failed to pass orders on the explanation submitted by the accused, they have lost opportunity of challenging the same in appeal and therefore, the proceedings are vitiated.
28. Chapter X of Factories Act deals with penalties and procedure. Section 92 of the Factories Act prescribes general penalty for the offences. On proof of the offence committed by the accused, they are liable for punishment as per this Section, which is punishing clause. It does not require the Inspector to pass any order and therefore it is not appealable under Section 107. Only Sections 15(3), 17 CRL.RP.NO.100238/2014 38(1), 39 and 40(2) of Factories Act require the Inspector to pass necessary orders in writing, specifying the measures which in his opinion should be adopted, and requiring them to be carried out before specified date.
29. Section 15 deals with artificial humidification i.e., the humidity of the air inside the factories required to be increased.
30. Section 38(1) deals with precautions in case of fire and require that in every factory, all practicable measures shall be taken to prevent out break of fire and its spread, both internally and externally, etc.
31. Section 39 is the power exercised by the Inspector to require specification of defective parts or test of stability. It states that if the Inspector is of the opinion that any building or part of a building or any part of the ways, machinery or plant in a factory is in such a condition that it may be dangerous to human life or safety, he may serve on the occupier or Manager or both of the factory an order in 18 CRL.RP.NO.100238/2014 writing requiring him to furnish drawings, specifications, etc. to determine whether they can be used with safety. He may also direct to carry out such tests to...... inform Inspector of the result thereof. Similarly, Section 40 deals with safety of buildings and machinery. If the Inspector is of the opinion that the building........ or plant in a factory is in such a condition that it is dangerous to human life or safety, he may serve on the occupier or Manager or both an order in writing specifying the measures which are required to be adopted....... carried out before a specified date.
32. In fact Section 107(2) requires that in case of necessary, the appellate authority may hear the appeal with the aid of assessors, which itself goes to show that in the orders passed under Section 15(3), 38(1), 39 and 40(2), the services of assessor may require to decide the safety measures already taken or required to be taken. Section 107 has nothing to do with the criminal liability for which punishment is prescribed under Chapter X. Therefore, the say of learned counsel for accused that the 19 CRL.RP.NO.100238/2014 complainant/Inspector was require to pass certain order, in the absence of which the proceedings are vitiated cannot be accepted and is without any substance. If such an argument is accepted, then no action could be taken against the occupier or Manager for violation of the provisions under the Factories Act, for which penalty is prescribed in Chapter X.
33. While deciding Mohammed Azeez, Vineet Agarwal and K.Rajashekar Reddy, the Co-ordinate Bench of this Court has not considered these aspects and therefore, no reliance could be placed on them. In fact in Patrick and Yashihirao Horinouchi Vs. The Deputy Director of Factories (Yashihirao)5 the Co-ordinate Bench of this Court has in detail examined the provisions of Factories Act and refused to quash criminal proceedings against the petitioners therein by holding that for taking criminal action, there is no need for the Inspector to pass any order on the explanation submitted by the occupier or Manager as the case may be. These two decisions are applicable to the case on hand. In 20 CRL.RP.NO.100238/2014 fact in Ex.P11 which is a reply submitted to the accident investigation report, the accused have admitted that there are certain lapses and they are being corrected. It has nothing to do with the criminal liability incurred on account of the accident that has taken place.
34. Considering the oral and documentary evidence placed on record, the trial Court as well as Sessions Court have rightly held that the allegations against accused are proved beyond reasonable doubt. The conclusions arrived at by them are in consonance with the evidence placed on record and this Court finds no justifiable grounds to interfere with the same.
35. In the result of the petition is liable to be dismissed and accordingly the following:
ORDER
(i) Petition filed by the accused under Section 397 r/w Section 401 I.P.C is dismissed. 5
W.P.No.11451/2018 Dt: 06.12.2021 21 CRL.RP.NO.100238/2014
(ii) The impugned judgment and order dated 10.09.2012 in C.C.No.1250/2008 on the file of JMFC-II, Belgaum and judgment and order dated 01.07.2014 in Crl.A.No.182/2012 on the file of V Addl.District and Sessions Judge, Belgaum are confirmed.
(iii) The Registry is directed to send back the trial Court as well as Sessions Court records along with copy of this order forthwith.
Sd/-
JUDGE RR