Punjab-Haryana High Court
State Of Haryana vs Arjun Dass Chawla on 13 September, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
CRA-S-546-SBA-2002 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-546-SBA-2002 (O&M)
Date of Decision: September 13, 2013
State of Haryana
...Appellant
Versus
Arjun Dass Chawla
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. Chetan Sharma, AAG, Haryana,
for the appellant.
Mr. Akashdeep Singh, Advocate,
for the respondent.
NARESH KUMAR SANGHI, J.
1. Challenge in the present appeal filed by the State of Haryana, is to the judgment dated 25.9.2000, passed by the learned Chief Judicial Magistrate, Rohtak, whereby Complaint No. 314/2 of 1995, dated 17.7.1995, for the offence punishable under Section 94 of the Factories Act, 1948 (for brevity, 'the Act'), was dismissed and the accused-respondent was acquitted.
2. The brief facts of the case are that M/s Krishna Fire Works, Gohana Road, Rohtak, was engaged in the manufacturing of fire crackers by using explosive material. On 24.5.1995 at about 11.45 a.m., during testing of a sample of fire cracker in the factory premises, there was an explosion and fire broke out in the explosive material kept in the factory. The workers working there were entrapped in the fire and sustained fatal/serious burn Kapoor Prashant 2013.09.23 16:56 I attest to the accuracy of this order CRA-S-546-SBA-2002 (O&M) 2 injuries. In the said incident 23 persons died and 9 were injured. Out of 23, 4 were male, 13 females and 6 children.
3. On 17.7.1995, a criminal complaint under Section 94 of the Act, bearing No. 314/2 of 1995, was presented against the accused-respondent, inter alia, with the allegation that on 24th and 25th of May, 1995, R.L. Kalra, Chief Factories Inspector, Haryana; S.M. Madan, Deputy Chief Factories Inspector, Haryana; and N.S. Khatri, Assistant Director, Industries, Safety and Health, Rohtak, inspected the factory premises of the accused- respondent and found that the accused-respondent was running the factory by employing about 50 workers and carrying out the business of manufacturing the crackers with the aid of three horsepower electric load, without obtaining a valid licence as provided under Section 6 of the Act and Rules 7, 8, 10 and 14 of the Punjab Factories Rules, 1952 (for brevity, 'the 1952 Rules'), which is punishable under Section 94 of the Act.
4. On 7.8.1995, the accused-respondent appeared before the learned Trial Court and was admitted to bail. It is apposite to mention that in the interim order, dated 26.10.1995, passed by the learned Trial Court, it is mentioned that the charge-sheet under Section 92/94 of the Act was framed to which the accused pleaded not guilty and in the judgment dated 25.9.2000, the learned Trial Court had mentioned that the accused-respondent was charged for the offence punishable under Section 94 of the Act.
5. In order to substantiate its allegation, the Kapoor Prashant 2013.09.23 16:56 I attest to the accuracy of this order CRA-S-546-SBA-2002 (O&M) 3 complainant, N.S. Khatri, appeared as PW-1 and produced S.M. Madan as PW-2, and R.L. Kalra as PW-3. On completion of the evidence of the prosecution, the statement of the accused- respondent, in terms of Section 313, Cr.P.C., was recorded wherein he denied the incriminating material appearing against him and pleaded innocence. No evidence in defence was adduced.
6. After hearing learned counsel for the parties, the learned Trial Court acquitted the accused-respondent primarily on the grounds that the complainant had not placed on record the list of workers who were allegedly found working in the factory of the accused-respondent; Gianwati was the main person who could narrate the correct facts, but the complainant failed to examine her; no record from the electricity department was produced to prove that the alleged load of three horsepower was being consumed by the accused-respondent; the oral testimony of the witnesses examined by the complainant was not sufficient to convict the accused-respondent; and that the complainant miserably failed to prove that there was violation of the Act or the rules made thereunder.
7. I have heard learned counsel for the parties and with their able assistance gone through the entire material available on record.
8. At the outset, it is apposite to refer to Section 94 of the Act, which reads as under:-
Kapoor Prashant 2013.09.23 16:56 I attest to the accuracy of this order CRA-S-546-SBA-2002 (O&M) 4 "94. Enhanced penalty after previous conviction.-
(1) If any person who has been convicted of any offence punishable under section 92 is again guilty of an offence involving a contravention of the same provision, he shall be punishable on a subsequent conviction with imprisonment for a term which may extend to three years or with fine which shall not be less than ten thousand rupees but which may extend to two lakh rupees or with both:
Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a fine of less than ten thousand rupees:
Provided further 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 thirty-five thousand rupees in the case of an accident causing death and ten thousand rupees in the case of an accident causing serious bodily injury.
(2) For the purposes of sub-section (1) no cognizance shall be taken of any conviction made more than two years before the commission of the offence for which the person is subsequently being convicted."
9. A perusal of the above Section clearly shows that a person can be charged under Section 94 of the Act only when he has been convicted of any offence punishable under Section 92 and is again guilty of an offence involving a contravention of the same provision; and on a subsequent conviction, enhanced punishment can be awarded.
10. It is the conceded position that the accused- Kapoor Prashant 2013.09.23 16:56 I attest to the accuracy of this order CRA-S-546-SBA-2002 (O&M) 5 respondent was never held guilty for the offence punishable under Section 92 of the Act for the second time on a subsequent event. However, it is correct that the accused-respondent was earlier convicted and sentenced under Section 92 of the Act on 8.4.1995 and was released after imposition of fine. There is no averment in the complaint or in the depositions of the witnesses that the accused-respondent was convicted for the same offence second time. Therefore, the provisions of Section 94 of the Act would not be applicable for the prosecution of the accused respondent.
11. Even otherwise, the prosecution has not been able to prove the violations as mentioned in the complaint and narrated by the witnesses in their depositions for want of examination of Gianwati, the material witness. The argument of the learned counsel for the appellant-State that the statement of Gianwati, recorded by R.L. Kalra (PW-3) during the course of his visit to the factory on 24-25 May, 1995, be read as substantive evidence, cannot be sustained since the said statement cannot be given any credence without her appearing in this case as a witness.
12. There is no other material to show as to how the violations as described in the complaint were committed by the accused-respondent. It is also apposite to mention that the present complaint was instituted otherwise than on police report. The learned Trial Court without recording the pre-charge evidence, framed the charge for the offence punishable under Section 94 of the Act, which was in violation of Section 244, Kapoor Prashant 2013.09.23 16:56 I attest to the accuracy of this order CRA-S-546-SBA-2002 (O&M) 6 Cr.P.C. The procedure adopted for the trial of the case was absolutely contrary to Chapter XIX of the Code of Criminal Procedure. The occurrence had taken place in the year 1995 and after lapse of 18 years, it would not be desirable to remit the matter to the learned Trial Court for trial afresh.
13. As a sequel to the above discussion, there is no merit in the present appeal and the same is hereby dismissed.
(NARESH KUMAR SANGHI)
September 13, 2013 JUDGE
Pkapoor
Kapoor Prashant
2013.09.23 16:56
I attest to the accuracy
of this order