Karnataka High Court
Mr Jagannadha Raju vs The State Of Karnataka on 7 February, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRL.P No. 7376 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 7376 OF 2017
BETWEEN:
Digitally signed by MR. JAGANNADHA RAJU, AGED ABOUT 40 YEARS,
R HEMALATHA
Location: HIGH S/O SHIVARAM RAJU, OCCUPIER AND MANAGER,
COURT OF
KARNATAKA M/S RACS PHARMACHEM (INDIA) PVT LTD.,
PLOT NO.IP-13-PART-2, I PHASE,
KIADB INDUSTRIAL AREA, KUDUMALAKUNTE, GOWRIBIDANUR
TALUK, CHIKKABALLAPUR DISTRICT-561 208.
...PETITIONER
(BY SRI. MALLIKARJUN N.K., ADVOCATE FOR
SRI. SAMPATH A., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS INSPECTOR OF POLICE,
GOWRIBIDANUR TOWN POLICE,
CHIKKABALLAPUR DISTRICT-561 208,
REP. BY SPP, HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
2. SMT. MANJULA, W/O LOKESH,
AGED ABOUT 23 YEARS, ANNENAHALLI, KODIGEHALLI HOBLI,
MADHUGIRI TALUK, TUMKUR DISTRICT-572 112.
...RESPONDENTS
(BY SRI. MAHESH SHETTY, HCGP FOR R-1;
SRI A.N. RAMAKRISHNAIAH, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE
CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH THE ENTIRE
CRIMINAL PROCEEDINGS INITIATED AGAINST THE PETITIONER IN
C.C.NO.492/2017 BEFORE PRINCIPAL CIVIL JUDGE (JR.DN) AND J.M.F.C AT
GOWRIBIDANUR, CHIKKABALLAPUR DISTRICT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.P No. 7376 of 2017
ORDER
Petitioner has been charge-sheeted for the offence under sections 287 and 304A of IPC.
2. The summary of the charge sheet is as follows:
On 27.09.2015, the husband of the 2nd respondent and other two workers were hired by the contractor to clean the reactor at the factory premises belonging to the petitioner. The
3 workers cleaned the ground floor of the production block (reactor section) and left to have their dinner and returned to work at 10.30 p.m. While the other two workers continued cleaning work on the ground floor, the husband of the 2nd respondent continued the cleaning work at the first floor, and at about 11.15 p.m., other two workers called Lokesh for some help, and when there was no response, the said workers went to first floor and found the husband of the 2nd respondent, Lokesh, lying unconscious in front of the reactor no.3 and he was not wearing mask. The victim was taken to the hospital for treatment, where he was declared brought dead. The cognizance taken by the learned Magistrate for the aforesaid offence is impugned in this petition.
3. The learned counsel for the petitioner submits that, admittedly, the husband of the respondent No.2 was working under the contractor who was entrusted for cleaning the floors of the factory premises belonging to the petitioner, and in the absence of any allegations that the respondent No.2 died due to 3 CRL.P No. 7376 of 2017 the rash and negligent act of the petitioner herein, the cognizance taken by the learned Magistrate is impermissible.
4. He further submits that the initiation of the prosecution under Section 304A of IPC after the petitioner was prosecuted for the offence under Section 92 of the Factories Act is impermissible. In support, he places reliance on the decision of the Co-ordinate bench of this Court in Crl.P.No.5115/2014.
5. On the other hand, learned counsel for respondent No.2 submits that the charge sheet material clearly disclose that the husband of the 2nd respondent died due to the rash and negligent act of the petitioner herein by not providing safety devices and the veracity of the allegations made against the petitioner-accused can be considered after full fledged trial, and at this stage, the cognizance taken by the learned Magistrate cannot be interfered with.
6. Considered the submission made by the learned counsel for the parties.
7. It is undisputed that the deceased was working under the contractor who was entrusted with the work of cleaning the factory premises belonging to the petitioner. The petitioner had no control over the deceased husband of the 2nd respondent. The allegation is that, the husband of the 2nd respondent died while working in factory premises after inhaling poisonous substance, and the said accident occurred, since the 4 CRL.P No. 7376 of 2017 deceased was not wearing the mask at the time of cleaning the premises. The providing of the mask to the worker was the responsibility of the contractor. Hence, the Petitioner cannot be said to have acted rashly and negligently resulting in the accident.
8. The proceedings were initiated for the offence under Section 92 of the Factories Act, on the very same set of charges and in the said proceedings, the petitioner has pleaded guilty and the trial court imposed fine of Rs.25,000/-.
9. The co-ordinate bench of this court while dealing with the question as to whether the simultaneous initiation of prosecution under Section 304A of IPC and Section 92 of Factories Act in W.P.No.5115/2014 disposed off on 28.05.2019 at paras 10 to 14 has held as follows:
"10.I am in respectful agreement with the view taken by this Court in the above decisions. Even otherwise the scheme of the Factories Act does not permit parallel prosecutions under two different Acts against a person accused of committing offences under the Factories Act. Section 92 is the only section under the Act which makes the contravention of the provisions of the Act, punishable as criminal offence and prescribes punishment and fine."
11. The Section reads as under:
"92. General penalty for offences.--Save as is otherwise expressly provided in this Act and subject to the provisions of section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, 5 CRL.P No. 7376 of 2017 the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to 1[two years] or with fine which may extend to 2[one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to 3[one thousand rupees] for each day on which the contravention is so continued: 4[Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than 5[twenty-five thousand rupees] in the case of an accident causing death, and 6 [five thousand rupees] in the case of an accident causing serious bodily injury.
From the reading of the above section, it is clear that whenever contravention of the provisions of the Act or the Rule made thereunder has resulted in an accident causing death or serious bodily injury, in addition to punishment of imprisonment for a term which may extend to two years or a minimum fine of Rs.25,000/- is visited as penalty. This provision if read in the backdrop of Section 88 of the Act, it casts an obligation on the occupier to give notice of the accident within 48 hours immediately following the accident, to the authorities constituted under the Act. Section 9 of the Act deals with the powers of the Inspectors. It empowers the Inspectors to inquire into any accident or dangerous occurrence, resulting in bodily injury, disability and to take on the spot or otherwise the statements of any person which he may consider necessary for such inquiry. Thus, the scheme of the Act provides for an independent mechanism for inquiry or investigation into the accident taking place within the premises of the factory by the Inspectors, but it does not invest power on the police to register and investigate the offences against occupiers or other personnel of the factory. On the other hand, Section 105 of the Act mandates that no Court shall take cognizance of any offence under this Act except on complaint by, or with previous sanction in writing of, an Inspector. This provision, therefore, impliedly ousts the jurisdiction of the police to register FIR in respect of the alleged contraventions of the Factories Act and to embark upon investigation thereon even if the contravention leads to accident resulting in death or bodily injury within the factory premises. These special provisions therefore, prevail upon the general provisions contained in Indian Penal code and operate as implied repeal of the substantive offence created under the general law viz. Section 304A of Indian Penal Code as it renders the accused culpable for the same offence as described in Section 92 of the Act in respect of death or bodily injury arising due to contravention of the provisions of the Factories Act. .6 CRL.P No. 7376 of 2017
12. The above conclusion is drawn from the well established principle of law that, "when a later statute describes an offence created by an earlier statute and imposes different punishment or varies the procedure, the earlier statute is repealed by implication." This principle of statutory interpretation is reiterated by the Hon'ble Supreme Court in T.BARAI vs. Henry Ah Hoe and another (AIR 1983 SC 150) in the following words :
"25. It is settled both on authority and principle that when a later statute again describes an offence created by an earlier statute and imposes a different punishment, or varies the procedure, the earlier statute is repealed by implication. In Michell v. Brown(1) Lord Cambell put the matter thus :
"It is well settled rule of construction that, if a later statute again describes an offence created by a former statute and affixes a different punishment, varying the procedure, the earlier statute is repealed by the later statute See also Smith v. Benabo (1937) 1 A11 ER 523 (2) In Regina v. Youle, (1861) 158 ER 311-316 (3) Martin, B. said in the oft-quoted passage : "If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same offences, and a different punishment is imposed by the later Act, I think that, in effect, the legislature has declared that the new Act shall be substituted for the earlier Act."
The rule is however subject to the limitation contained in Art. 20(1) against ex post facto law providing for a greater punishment and has also no application where the offence described in the later Act is not the same as in the earlier Act i.e. when the essential ingredients of the two offences are different.'
13. The facts on record clearly disclose that on getting information of the accident, the Deputy Director of Factories and Labour Officer rushed to the spot and took up inquiry/investigation and having ascertained that the petitioners herein contravened provisions of the Factories Act resulting in the death of five of its workers, filed a complaint before the Judicial Magistrate of First Class, Chamarajanagar on 20.11.2012 The same was numbered as C.C. No.823/2013. It is not in dispute that the learned Magistrate has taken cognizance of the alleged contraventions punishable under Section 92 of the Act and has issued summons to the petitioners. It is also not in dispute that the said complaint is filed within limitation prescribed under Section 106 of the Act. Undoubtedly, the proceedings in C.C. No.823/2013 are initiated in accordance with law and the same are pending consideration of the learned Magistrate. That being the case, Chamarajanagar Police could not have registered a case in Crime No.240/2012 against the petitioners for the alleged offence punishable under Section 7 CRL.P No. 7376 of 2017 304- A of Indian Penal Code and proceeded with the investigation and filed a charge sheet for the above offences, nor could the learned Magistrate have taken cognizance of the said offence and issued summons to the petitioner. Needless to say that in view of specific bar contained in Section 105 of the Act, learned Magistrate could not have assumed jurisdiction to take cognizance of the alleged offence except upon the complaint filed by the authorized officer viz., Inspector appointed under the Factories Act. Moreover, learned magistrate having already taken cognizance of the alleged offence based on the complaint lodged by the Asst. Director of Factories, in view of Section 26 of the General Clauses Act, cognizance taken by the learned Magistrate and the summons issued to the petitioners to face the charges for the alleged offence under Section 304-A of Indian Penal Code being legally untenable cannot be sustained.
14. In view of the above factual and legal position, the registration of FIR against the petitioners by respondent No.1 and consequent investigation and submission of the charge sheet paving way for the prosecution of the petitioners for the alleged offence under Section 304-A of Indian Penal Code as well as cognizance taken by the learned Magistrate and the prosecution initiated against the petitioners is held as illegal, without jurisdiction and a clear case of abuse of process of court.
10. In view of the above, the initiation of criminal prosecution for the offence punishable under Section 304A of IPC having prosecuted the petitioner - accused for the offence under the Factories Act and also that the petitioner has not acted rashly and negligently in causing the death of the husband of the 2nd respondent, the cognizance taken by the learned Magistrate is impermissible and the continuation of criminal proceedings will be an abuse of process of law.
11. The learned counsel for the petitioner has filed a memo stating that a sum of Rs.1,00,000/- will be paid as compensation to the respondent No.2 on humanitarian consideration and the said payment shall not be construed as 8 CRL.P No. 7376 of 2017 admitting that the accident occurred due to rash and negligent act of the petitioner herein.
12. Placing the memo on record, I proceed to pass the following:
ORDER
i) Criminal petition is allowed.
ii) The impugned proceedings in C.C.No.492/2017 on the file of the Principal Civil Judge and JMFC, Gauribidanur, Chikkaballapur District is hereby quashed insofar it relates to the petitioner-accused.
iii) It is made clear, the Competent Authority under the workmen's compensation Act to adjudicate whether the 2nd respondent is entitled for the compensation or not without being influenced by any observation made hereinabove . In the event, the 2nd respondent succeeds in the said proceedings, the payment of Rs.1,00,000/- made to the 2nd respondent in this petition shall be adjusted.
Sd/-
JUDGE HR