Karnataka High Court
K V Ashraf Hussain vs State Of Karnataka At The Instance Of on 23 April, 2010
®
' {arm
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 23rd day of April, 20
BEFORE _""iiIkix'fl
THE HON'BLE MR. JUsTIcjE%ARALIr'NAoAI§AII " it
CRIMINAL PETITION Naotie 54/2oi1'o" A
BETWEEN I " ~ =
I. K V Ashraf I-Iussain, I
Occupier/ Director. '
2. A Lohidaksharigfii _ _
Factory Managerb A
Both are working at_ __
M / s.Kap (IrI.,diaj"_C;eI<arnics _ .
Private Limit-ed,"VB3.sheejrabad,
Bidanagere, VKU..;iiga1_"--' 5'72 «1.3VQ,5
Tumikiur Dis:htrict§";V4 .. Petitioners
(By
AND : i _ I
_ A St¢:i--te of Karnataka..at the
" - éivristarice of Krishnappa K S,
' Asst. ~.D1"1<ecto1'--._of Factories,
'F.11I11k1.1fr--. Divis.ion, (An
'II1s"pecto1' [appointed u / s.8( 1)
of "the ..Fac.tories Act, 1 948)
St.Ma1y;_ High School Road,
' Gandhinagar, Tumkur -- 572 102. Respondent
it Vijayakumar Majage. HCGP ] r'->---«.._;h'\Z*\""""""
This Cri.P is filed U/S 482 of Cr.P.C., praying to set aside the entire proceedings initiated against the petitioners in CC No.962/2006 on the file of the Civil Judge (Jr.Bn] & JMFC, Kunigal.
This Crl.P coming on for admission the Court passed the following:
Petitioner N0s.l and 2 her:ein;'_"who tare' respectifieiy accused Nos.1 and 2 in CCV:lNo.9(32/i tile of the learned Civil Judge (gIr;liA).'i1.]"-»andlJ1V£3¥'C:Kunigal, Tumkur District (here'in_afterv as 'Trial Court' for short) of the entire proceedi11gs':;in. -- said"case';" ' '
2. ll'i_'hoi_iglli_viras listed on 31.3.2010 for adn1_issi0n',~V it .wasA'~._Ctai{1en for final disposal and the ai'él:1I1}€%Dt~S of Jayaprakash, the learned counsel Tor" pet.itioners -- accused and Sri Vijayakurnar Majlage,.lthe'llearned High Court Government Pieader for the lrvespondent --- State were heard on merits. The I
-,,"aveurments in the complaint filed by the Inspector of V» ....l5+'actories before the Trial Court and other materiais placed on record by the iearned counsei for the petitioners were perused.
3. The final order was dictated in 31.3.2010 in the open court and the came to be dismissed on r'neri:ts...:' "=Thereaf'ter_,A Von 8.4.2010, before the order; Vasf".,:"dvictVated 31.3.2010, could be byugthe' writer and signed by for the petitioners gotthis Spoken To.
On that his arguments on refer to the provisions of Section provides that a person being trietl and accju-itttedpyin an earlier case cannot be tried in ' fa 'sub-s_e'quent__ case either for the same offence or for any other the same set of facts on which he was tried. and acquitted in the eariier proceedings and A Aftheijefore the finai order dictated in this case on 31.3.2010 be recalled and further opportunity be given 'I"""*°~../"*-«'...«=w-\__=H ¢.:...,...a..':> 4 to him for submitting further argument with reference to Section 300 Cr.PC. Accepting the said submission of the learned counsel for the petitioners, the orde'r»rthat was dictated on 31.3.2010, which was not and signed, was recalled and opportu_n.i.ty_:':carne tofu given to the learned counse1T__ making his further subnJ_isS__ions"'*.5_rith_ re-:fei'eI3Q_¢ to theft» provisions of Section 300 ,_Further:argnments of both the sides are petition ' S
(a)' 'TheV"2nit.petit.ioner herein viz: A Lohidakshan, "the Manager of the Factory belonging to the 151 petitiDner,fV"yiZf:v K V Ashraf Hussain, and one "s/o.Chandrashekaraiah, an employee of A the'V-V'1j_Siy'rpVetitioner in his factory, were prosecuted in c{cNo.s1 /2007 on the file of the learned Civil ffgitidge (Jr.Dn.) and JMFC, Kunigai, for the offence under Section 304A IPC on the ground that the said accused did not properly fence the transmission machinery in the said factory and <"'"**-~£Z"""°°'"""""'""'""""' 5 therefore one Smt.Gowramma, who was employed in the said factory, came into contact with transmission machinery, sustained fatal injuries and died. After trial, the Trial Court 'acquiitted both the said accused in the said offence under Section 304A IPC.
(b) The Factory inepeetior , 'ehas subsequent complaint undeiw_'fSfecti'o;Ai before the same learns-d Civil JMFC, Kunigal against the fipetitioner Nos.1 and 2 the occupier of thefsaidff Lohidakshan, the Manager by not properly itfencingvthe'.transrnission machinery in the said factory,'they.cont'i*avened the provision of Section _ 21{i--).[iv](b) Factories Act, 1948 (for short 'Factor'ie':i.V Act'), which is punishable under 92 of the said Act.
Trial Court took cognizance of the said offeiice and issued process against both the it 'petitioners. Accordingly, CC No.962/ 2006 came to be registered against these petitioners for the said offence. Therefore, the petitioners herein, who are respectively accused Nos.1 and 2 in the said case z/'"""-~..»*-~.i.....-...~_,,, <"%-»~3 * _ fen:cect._1;y..theseVpetitioners, of whom petitioner No.2 was (CC No.962/2006], have filed the present petition under Section 482 Cr.PC seeking quashing'~._pf~.ethe entire proceedings in the said case.
5. Sri R Jayaprakash, the learned the petitioners, strongiy contends the p:e'tiit-iowrier herein was tried by the sar_I_i"e._Cou'rt iaiongrwiiti1--wVanothei*at accused Viz: Umesh,.__an enipio'yee"--in t.he"A§a,id_.i"actory in cc No.61/2007 for _off'en§;{--e:ivaiiiijgiigsection 304-A IPC in respect of who was aiso on the ground that t}1ev--ir1_;'uries sustained by her due to she 'Corning't»into:contact with the transmission machinery-« sa,i»ri'~.iactory which was not 1y K therein, and therefore, the present (CC No.962/06] registered against the petitioners herein for the offence under the Factories ;i_(;_t;A.--'0I1 the same set of facts, cannot be allowed to be ¢_-««~..;=;'""""'"""'""'-*°-«»---~ continued in View of the provisions of Section 300 Cr.PC.
6. Per contra, the learned High .V Pieader contends that the petitioners No.1 and 2 .he:_:jein his '"pun.'-.shab1e 1_inderpK Section 92 of the fact, for which no charge was framed against petitioner NoA;3i?iV:"ar1dpti;i¢Vi'h No.1 was not one of the accused and as such these No.61/2007 for this not and therefore the said distinct from the one under Section 3'O._4A_IFV5C'._ the 21161 petitioner herein was tried acVc1iiitted,¢va:a-ei hence the proceedings in the ' presen,t''C'pC:N0_.962/ 2006 cannot be quashed as prayed the'-"petitioners.
is not in dispute that the offence under Section A' {PC for which petitioner No.2, the Manager of the "said factory, was tried and acquitted and also the W iiii i.;'f""'""'"'"'"*"""'*' offence under Section 21(1)[iV)[b} of the nifiict, for ___Which the 2nd petitioner and the 1st petitioner respe'cti"'vely being the Manager and occupier of the saiii:---- sought to be tried are based on .thve..san:i4eV féailure it ' on their part to securedly fence ithe"
machinery in their factory;
8. The petitioners.._..':'h_erein;_fiii-esvpectivelyt being the occupier and Manager are aileged to have transmission machinersz Smt. Gowrainrna, who it sustained fatal injuries and learned counsel for the petitiovners strongly. contends that since both the i offences;.cth:e"vone under Section 304A IPC for which the herein was tried along with another empiogxfeeof the factory and came to be acquitted of the A offence in the earlier case, and the alleged ' contravention of Section 2l[i)[iv](b) of the Factories Act which is punishable under Section 92 of the said Act, are based on the same set of facts, in View of Section 300 Cr.PC the subsequent prosecution both the petitioners herein cannot be pernaittetiVi' continued.
9. Section 300 Cr.PC reads "S300. Person once not to be tried for sarn_e.uo'ffer1ce .' [1] A been tried by a court of for an offence cc=_nVi,cted'~of'ifaeqiiitted of such _' such conviction or not be liable to be _ tried.again._for_uth--e same offence, nor on the it same facts__fo_r any other offence for which a charge from the one made against R have been made under sub-
(1) of section 221 or for which he .. have been convicted under sub- section [2] thereof.' (2) A person acquitted or convicted of any offence may be afterwards tried, with the § "'°'v"'~<..,;»~*"° consent of the State Government, for any distinct offence for which a separate charge"'»c might have been made against him former trial under sub-section [1]
220.
(3) A person conviictedof constituted by any act. causingcons(:qL1ences*. which, together with act, 'co1isti_tute'd"a'V different offence fro1n_..that_ 'Gf_whic1iv.heA..'was convicted, 'tried for such last--mentioned the ctjnsequences had not hyaippenedg, to the court" tf;«..have'_ happ.ened_, the time when he was ..convict;ed. . _
--. ' acquitted or convicted of offence conistituted by any acts may, . .,notwith'stariding such acquittal or ¢.onxriction;"'--b-'*" subsequently charged with, for, any other offence constituted A Vbyfj.theffsarne acts which he may have cvoinrnitted if the court by which he was first " tired was not competent to try the offence if if with which he is subsequently charged. (5) A person discharged under section 258 shali not be tried again for the a Smt.Gowramma, an employee in the said factory, died as a result of the injuries sustained by her by of she coming into Contact with transmission the factory, which was alleged -.t0 securedly fenced by the petitio1;S1°eVrs7'.A.i_%1erei/13-, failure on the part of the-se'~~._petitio.ners:'v_in°gVsec1.ireci1yVV fencing the transmission" constitutes violation of the provisions of the Factories Section 92 of the said was tried in the said with this offence Factories Act along with the offence Section IPC in the said earlier case. i rurthé:-, it is not the case of the prosecution that the'Vi'instaii:t fcriminal case is instituted against these petitioners with the consent of the State Government as if nrovided under sub--section [2] of Section 300 CIZPC. It S also not the argument of the learned Government "~,_'"""'°*-: "x.-'"*\.,..»»»=« ,:;._:._..,.....,,., Pleader that this later ease of the prosecution against these petitioners falls under any of sub--sectio:'is--l3);'[4} and [5] of Section 300 Cr.PC.
12. In the ease of Thakur 'The State of Bihar reported.»'in_ Al'RA.y_1'966 relevant observation of theS""«Ho11_'pble."Sttprerr:e Court made at para No.7 of as under:
"The. provisions' of 1] bars trial of lperspon "é1ge{i1i,"n'ot--*'only for the same' offen.'"cV.e"'---b1,tt§;11s'o.,.l50r'=.§ai1y other offence based_. on the "sai11e~.faet"s'."'~-- I' "
The Were made by the I-Ion'ble Supreme (Z'ourt.'Wit11._referenee to Section 403(1) of the Corie ofCrlnnnelyflfocedure, 1898, which corresponds Ztoétxhe Section 300 of Cr.PC, 1973. S' the case of Janapati Krishna vs State .V offilll? fveported in 2005 CrI.LJ 1187, relied upon by the ':f..1ea1*r;edV"counsel for the petitioners, the High Court of €""":=-**""x,»«..1 Q'**~*-»-aw} 14 Andhra Pradesh has observed at paragraph - 15 therein as under:
"15. A careful reading of the materiai4:"'._ available on record would go to Virtually on the same set of facts on the -sarne evidence, .A No.51/1997 was cond1,i»cted';s.. resulted in an acquittal. Th'e_voI1ly factor in the present ti*ia1'.appears the dying declaration;:E;§..'F--8"-yyas br'o*.*edE by examining PW~?9 g . On of this additional factor-,»--v:the V in the considéérédfif'0}3ini0I1"Hof'_thi's.___C§ourt is not reco_rd.ing conviction under in the light of _ the'i'act' thatAt.he'~.--charges in relation to both Voffences____had been founded on the same of«--facts. At any rate, it cannot be said an offence of abetment to commit within the meaning of Section 107, ..I"I-"_C. Hence, Viewed from any angle, the iindings recorded by the learned Judge ' cannot be sustained and accordingly, the findings are hereby set aside."
€M 16 such offence under Section 221(2) of the Code."
15. Foilowing the above observations of the Honfble Supreme Court and the High Court of Andhra"
in the above said cases relied upon bytthe counsel for the petitioners, the cuonpjsidedred opinion that the subsequent _prose--cu'tion ag--ain'st' the.2i"3"~»t petitioner. Who has been of the offence under Sectio11:304--Aj_VtiPf3A,"' it sarne set of facts, based on Which:'_ =the_V su'i5se'c;:{1ei'it prosecution soug1ij.t"for',' permitted to be continued.
16. E5ctitione~rL occupier of the said factory and pe::tiom;;~ No'-.2 is its Manager. What was required .' it to"i:ie p"1<ov'e.d by 'prosecution in the said earlier case 'petitioner No.2, the Manager of the factory for-._the> offence under Section 304A IPC and what is required to be proved by the prosecution in the instant ' case': against both the petitioners herein for the offence '7"'\""V"\.».,.m...
(no-4»-4-«..x 17 under Section 92 read with Section 2l(l)(iv)(b) of Factories Act is basically the same fact viz: "Whether the transmission machinery in the factory was"'».not securedly fenced as on the relevant date these petitioners respectively being anvdd. manager of the factory." When the the entire evidence placed.»on__ recordlhelde. fact alleged against the accused thereitiione Vfof whom was the petitioner No'.-':7eni.p1oyed'=-by:'petitioner No.1 as manager in his factory} VV.r.a%g,_ '«f1\by,Wvp'f0ved by the and order of acquittal has attained fina1ift'y."the'~instant prosecution cannot be continued "against petitioner No.2 and, further, no would beflflserved by allowing the prosecution to as against petitioner No.1 [A1] only. Therefo1*e,~.dl"'am of the further opinion that the present V. prosecutfion cannot be permitted to be continued as petitioner No. l(accused No.1] also.