Chattisgarh High Court
Lal Babu Singh And Ors vs State Of Chhattisgarh And Ors on 14 July, 2015
Author: Pritinker Diwaker
Bench: Pritinker Diwaker
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 146 of 2014
1. Lal Babu Singh S/o Late Mahendra Singh Aged About 52 years
Working As Senior Manager (HR) In M/s Salasar Steel And
Power Limited Gerwani, P.S. Punjipathra Tahsil & Distt. Raigarh
Civil & Revenue Distt. Raigarh C.G.
2. Shiva Shankar Sahu S/o Bhaskar Sahu Aged About 30 Years
Working As Safety Officer In M/s Salasar Steel And Power
Limited, Gerwani P.S. Punjipathra Tahsil & Distt. Raigarh Civil &
Revenue Distt. Raigarh C.G.
3. Dr. Sanjiv Kumar Singh S/o S.K. Singh Aged About 35 Years
Working As Medical Officer In M/s Salasar Steel And Power
Limited, Gerwani P.S. Punjipathra Tahsil & Distt. Raigarh Civil &
Revenue Distt. Raigarh C.G.
4. Prakash Chandra Mundhra S/o Late Asharam Mundhra Aged
About 58 Years Working As Factory Manager In M/s Salasar
Steel And Power Limited Gerwani P.S. Punjipathra Tahsil & Distt.
Raigarh Civil & Revenue Distt. Raigarh C.G.
---- Petitioners
Versus
1. State Of Chhattisgarh Through The Collector Raigarh Tahsil P.S.
& Distt. Raigarh C.G.
2. The Sub Divisional Magistrate Raigarh Distt. Raigarh C.G.
3. Station House Officer Police Station Punjipathra Distt. Raigarh
C.G.
---- Respondents
For Petitioners: Shri Awadh Tripathi, Advocate For Respondents: Shri Gary Mukhopadhyaya, Dy. GA Hon'ble Shri Justice Pritinker Diwaker C A V Order 14/07/2015 On 10.12.2013 in Salasar Steel and Power Company Ltd. 2 an unfortunate incident had taken place where one of its labourers namely Silvanus Tirki suffered head injury on account of getting slipped while returning after drinking water. He was immediately rushed to the hospital where the doctors declared him brought dead. On the report of Deputy/Assistant Director, Industrial Health and Safety and the Factory Inspector, a criminal case No. 20/Factory Act/2014 was registered against petitioner No.4 herein namely Prakash Chandra Mundhra and one Krishna Mohta and they were prosecuted for violating the provisions of Section 7-A (i) of the Factory Act 1948 and Rule 73 (i) framed under Section 41 of the said Act. Their prosecution was for the offence punishable under Section 92 of the Factory Act.
As petitioner Prakash Chandra Mundhra and one Krishna Mohta admitted their guilt, they were sentenced to pay fine of Rs. 70,000 each totaling to Rs. 1,40,000 by judgment and order dated 5.5.2014. In default of payment of fine, one month simple imprisonment was also ordered by the Judicial Magistrate First Class. This order passed by learned Judicial Magistrate has never been challenged by either of the parties and the fine amount of Rs. 1,40,000 has also been deposited.
2. Legal heirs of the deceased had filed a claim case No. 28/EC Act/2014/Fatal/Deposit, before the Commissioner, Employees Compensation Act and vide order dated 20.8.2014 the compensation of Rs. 3,98,596 was determined in favour of the 3 claimants. It is informed by the counsel for the petitioners that even this amount has been deposited by the Salasar Steel and Power Company.
3. An inquiry was conducted by the Sub Divisional Magistrate, Raigarh who submitted his report on 16.6.2014 mentioning that the deceased died in an accident which had taken place on account of getting slipped and hit against the boiler tube while returning after drinking water. The report further states that as the deceased was not wearing safety shoes, the incident took place resulting in his death and for which the plant manager, doctor of the plant and safety officer are responsible. Apart from recommending payment of compensation of Rs. 5,00,000 to the family of the deceased and giving job in the factory to one family member, the Sub Divisional Magistrate had directed the concerned police station for registration of a criminal case against the petitioner Prakash Chandra Mundhra and one Krishna Mohta.
4. Pursuant to the report given by the SDM, FIR (Annexure P-
3) has been registered against the petitioners vide Crime No. 103/2014 for the offence under Section 304-A/34 IPC. In this petition, the petitioners have challenged the enquiry report dated 16.6.2014 and the FIR on the following grounds:
(i) that petitioner No.1 Lal Babu Singh was working as senior manager (HR), petitioner No.2 Shiv Shankar Sahu as safety officer, petitioner No.3 Dr. Sanjiv Kumar 4 Singh as medical officer and petitioner No.4 Prakash Chandra Mundhra as factory manager and as such they cannot be prosecuted for the death of the deceased;
(ii) that it was an unfortunate incident where the victim died after getting slipped while he was returning after drinking water and sustained head injury;
(iii) that helmet was also provided to the victim and there is enough evidence on record to show that while drinking water he had removed the same and was carrying the same in his hand and when he was returning after drinking water, he got slipped, sustained head injury and ultimately died;
(iv) that once petitioner No.4 has already been punished under Section 92 for violating the provisions of the Factory Act and the rules made thereunder, he cannot be prosecuted again for the offence under Section 304-A IPC;
(v) that even taking the entire case of the prosecution as it is once petitioner No.4 Prakash Chandra Mundhra and one Krishna Mohta have already been punished for the death of the deceased, petitioners 1 to 3 cannot be prosecuted under Section 304-A IPC for the death of the same person;
(vi) that the fine amount of Rs. 1,40,000 has already been deposited by petitioner Prakash Chandra Mundhra and Krishna Mohta. Apart from that, compensation of Rs. 3,98,596 has also been deposited by Salasar industry;
(vii) that widow of the deceased is already getting pension of Rs. 9,463/- per month;5
(vi) Reliance is placed by the counsel for the petitioners on the decision of the Apex Court in the matter of Kolla Veera Raghav Rao v. Gorantla Venkateshwara Rao and another reported in 2011 AIR SCW 788, decision of Jharkhand High Court in the matter of Binod Kumar Das and another v. State of Jharkhand and another reported in [2008 (64) AIC 430 (Jhar. HC)], decision of Madras High Court in the matter of R. Kannan v. State by Sub Inspector of Police, Chithode Police Station, Erode District rendered in Criminal OP No. 3749 of 2007, decision of Jharkhand High Court in the matter of Rabindra Agarwal v. State of Jharkhand and another rendered in WP (Cr.) No. 408/2009.
5. Supporting the action of the respondents it has been argued by the State counsel that the SDM in his enquiry report dated 16.6.2014 has rightly recommended the prosecution of the petitioners and based on that FIR has also rightly been registered for the offence under Section 304-A IPC. He submits that the issue involved herein is no longer res integra and even this Court has dealt with the same in the matter of Feroj Alam v. State of CG reported in 2009 II CGLJ 310.
6. Heard counsel for the parties and perused the documents on record.
7. Before dealing with the contention of the parties, the relevant provisions appear worth reference and the same are 6 reproduced as under:
7A. General duties of the occupier.-- (1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.
(2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which such duty extends, shall include -
(a) the provision and maintenance of plant and systems of work in the factory that are same and without risks to health;
(b) the arrangements in the factory for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work;
(d) the maintenance of all places of work in the factory in a condition that is safe and without risks to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risks;
(e) the provision, maintenance or monitoring of such working environment in the factory for the workers that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work. (3) Except in such cases as may be prescribed, every occupier shall prepare, and, as often as may be appropriate, revise, a written statement of his general policy with respect to the health and safety of the 7 workers at work and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision thereof to the notice of all the workers in such manner as may be prescribed.
Rule 73 Protective appliances. - (1) Suitable protecting devices such as tight fitting clothes, foot wears, gloves, finger guards, goggles, head gears, life belts, scaffoldings, non-skid ladders, respirators, gas masks, etc., shall be maintained and used on all such processes which are likely to cause injuries to workers, if not used.
(2) All personal protective appliances provided to the workers as required under any of the provisions of the Act or the rules shall have certification of ISI. (3) Protective Equipment. - The Inspector may, having regard to the nature of the hazards involved in work and process being carried out, order the occupier or the manager in writing to supply to the workers exposed to particular hazard any personal protective equipment or emergency devices as may be found necessary.
Section 92 (Factory Act): 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, 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 (two years) or with fine which may extend to [one lakh rupees] or with both, and 8 if the contravention is continued after conviction, with a further fine which may extend to [one thousand rupees] for each day on which the contravention is so continued:
[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 (twenty five thousand rupees) in the case of an accident causing death, and (five thousand rupees) in the case of an accident causing serious bodily injury.
Explanation. - In this section and in section 94 "serious bodily injury" means an injury which involves, or an all probability will involve, the permanent loss of the use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include, the fracture of bone or joint (not being fracture of more than one bone or joint) of any phalanges of the hand or foot.
Comments: Where an offence, which is punishable under section 92 of the Act, has been committed by an officer of the Railways and he is a public servant within the meaning of section 21 of the Indian Penal Code, the requirement of obtaining sanction to prosecute him is mandatory and taking cognizance of an offence in the absence of section cannot be alowed to stand; General Manager, Wheel and Axle Plant, Bangalore v. State of Karnataka, 1996(1) FLR 23 (Karna).
8. The question which arises for consideration before this Court is whether once an accused is convicted for violating the provisions of the Factory Act and the Rules made thereunder, for 9 the same incident he can be punished again under Section 304-A IPC?
For ready reference provision of Section 304-A IPC reads as under:
"304A. Causing death by negligence- Whoever causes the death of any person by doing any rash or negligent act nor amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
The provision of Article 20(2) of the Constitution of India is based on the well known maxim nemo debet his vexari, (si constant curiae quod sit) pro una et eadem causa means no one ought to be vexed twice if it appears to the Court that it is for one and the same cause. Article 20 (2) of the Constitution of India expressly provides that:
"No one shall be prosecuted and punished for the same offence more than once."
Likewise, section 300 (1) Cr.P.C. reads as under:
"300: Person once convicted or acquitted not to be tried for the same offence.- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, 10 or for which he might have been convicted under sub- section (2) thereof."
Similarly, Section 4 of the Code of Criminal Procedure reads as under:
"4. Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
9. In the case of Binod Kumar Das and another Vs. State of Jharkhand and another reported in 2008 (64) AIC 430 (Jhar. HC) it has been held by the Jharkhand High Court as under:
"10. As perusal of the provisions as contained in Section 92 of the Factories Act it is evidently clear that the allegation made in the first information report is well within the ambit of the provisions as contained in Section 92 of the Factories Act.
11. Further I do not find that the provision as contained in Section 105 of the Factories Act does speak as to in which manner offences under the Factories Act is to be dealt with. The said provision reads as follows:
Cognizance of the offence - (1) No Court shall take cognizance of any offence under this 11 Act except on complaint by, or with the previous sanction in writing of, an Inspector.
(2) No Court below that of a Presidency Magistrate or of a Magistrate of the 1 st class shall try any offence punishable under this Act.
12. Thus, it does appear that the provisions of the Factories Act stipulate relating to investigation, enquiry or trial of the offences falling within the provision of the Factories Act and therefore, the provisions of the Factories Act being a special legislation would prevail over the provisions of the Code of Criminal Procedure. In other words, it can be said that the investigation, enquiry or the trial relating to the matter falling within the special litigation is not permissible to be gone into under the general law.
13. Under these circumstances, the First Information Report of Bistupur P.S. Case No. 49 of 2006 corresponding to G.R. No. 409 of 2006 is hereby quashed so far as the petitioners are concerned."
10. In the matter of R. Kannan Vs. State by Sub Inspector of Police Chithode Police Station Erode District decided by Madras High Court on 26.09.2008 in Crl. O.P. No. 3749/2007 and M.P. No. 1 of 2007 it has been held as under:
"7. It is an admitted fact that for the occurrence that had taken place on 09.08.2005 at about 7.30 p.m, the petitioner herein, who was the supervisor/manager of the factory, was prosecuted under Sections 41, Rule 61(R) read with Section 92 of the Factories Act and convicted. Admittedly, it is a penal action for the 12 negligence attributed against the petitioner/accused. The present case in C.C.No. 249 of 2006 pending on the file of the Judicial Magistrate No. III, Erode is also based on the same occurrence and it is also a criminal proceeding. Therefore, I am of the view that after the conviction and sentence imposed in earlier case in C.C. No. 74 of 2005 by the Chief Judicial Magistrate, based on the same occurrence, the other case in C.C. No. 249 of 2006 would not be maintainable, as the occurrence is one and the same, hence proceeding with the second criminal case for the same occurrence, amounts to double jeopardy and therefore, in the interest of justice, I am of the view that the Criminal Original Petition has to be allowed."
11. In the matter of Rabindra Agrawal Vs. State of Jharkhand and another reported in 2011 (2) LLJ 490 Jharkhand it has been held by the Jharkhand High Court as under:
"11. Having heard learned counsel appearing for the parties, there does not appear to be any doubt that the allegations upon which first information report was lodged, come well within the ambit of the provision as enshrined under Section 92 of the Factories Act and as such, any prosecution under the General Law in view of Section 4 of the Code of Criminal Procedure is not permissible which proposition of law has already been laid down in a case of Binod Kumar Das and Another v. State of Jharkhand and Another (supra)."
12. Likewise in the case of Binod kumar Mittal Vs. State of Jharkhand decided by the Jharkhand High Court in Cr.M.P. 13 No.1165/2012 it has been held as under:
"3. The provisions of special or local law will prevail over the provisions contained in the Code unless there is specific provisions to the contrary.
Having taken notice of the provision of Section 4 of the Code of Criminal Procedure, one is required to take notice of Section 92 of the Factories Act so as to be ascertained as to whether allegation made in the First Information Report comes within the ambit of Section 92 of the Factories Act.
Section 92 Factories Act reads as follows:-
'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, 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 (two years) or with fine which may extend to [one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to [one thousand rupees] for each day on which the contravention is so continued:
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 14 serious bodily injury, the fine shall not be less than (twenty five thousand rupees) in the case of an accident causing death, and (five thousand rupees) in the case of an accident causing serious bodily injury.' On perusal of the provisions as contained in Section 92 of the Factories Act, it is evidently clear that the allegation made in the First Information Report is well within the ambit of the provision as contained in Section 92 of the Factories Act.
Further, I do find that the provision as contained in Section 105 of the Factories Act does speak as to in which manner offences under the Factories Act is to be dealt with. The said provision reads as follows:
"Cognizance of the offence - (1) No Court shall take cognizance of any offence under this Act except on complaint by, or with the previous sanction in writing of, an inspector.
2. No Court below that of a Presidency Magistrate or of a Magistrate of the 1 st class shall try any offence punishable under this Act."
Thus, it appears that the provision of the Factories Act does stipulate relating to investigation, enquiry or trial of the offence falling within the provision of the Factories Act and, therefore, the Factories Act being a special legislation, provision of it would prevail over the provision of the Code of Criminal Procedure. In other words, the investigation, enquiry or the trial relating to the matter falling within the special legislation is not permissible to be gone into under the general law."
13. In the case of Ashwani Kumar Singh and another Vs. State 15 of Jharkhand reported in 2007 (2) JCR 334 Jhr it has been held by the Jharkhand High Court as under:
"5. Finally the learned Counsel submitted that there cannot be two separate investigations in respect of the same incident. He further submitted that regarding any occurrence being taken place inside the factory, the provisions as laid down in the Factories Act are applicable as warranted in the present accident. The facts stated in both, the complaint as well as in the First Information Report, relates to the same occurrence and the accident being fully covered by the penal provisions of the Factories Act in which cognizance of the offence has been taken under section 92 of the Factories Act, the general law of the Indian Penal Code is not applicable when the case is covered under the Special Act. The special Act shall prevail over the general law and the enquiry by the Factory Inspector bars any enquiry by the police under the provisions of Section 105 of the Factories Act as far as any offence/accident takes place in the Factory premises. For such incident the Factory Inspector is the competent person to file a complaint. Finally learned Counsel submitted that when already case has been filed under the Factories Act and the same is pending the continuation of the present proceeding in the Penal Sections of the IPC would cause miscarriage of justice and therefore, the entire criminal proceeding against the petitioners including the order impugned dated 2.2.2006 by the CJM, Jamshedpur taking the cognizance of the offence in Golmuri (Burma Mines)P.S. Case No. 187/05 corresponding to G.R. No. 2112/05 be quashed.
8. The law is settled in the various decisions that the 16 special law shall prevail over the general law but both shall not run concurrently for the same cause of action. I find that when the complaint case has been instituted vide C/2 No. 5211/05 under Special law (Factories Act, 1948) the continuation of the criminal prosecution against the petitioners for the offence prescribed in the general law of Indian Penal Code is unsustainable. In both the statutes viz. Under Section 304-A, Indian Penal Code (general law) and under Section 92 of the Factories Act, 1948 the sentence prescribed to the convict is similar but with additional fine to the extent of Rs. One lakh in the Special Act to the occupier and in this manner the extent of fine is more severe in Special law and both cannot proceed at a time. The criminal prosecution of the petitioners, therefore, under Indian Penal Code is unsustainable."
14. In the case of Kolla Veera Raghav Rao Vs. Gorantla Venkateshwara Rao and Antoehr reported in 2011 AIR SCW 788 it it has been held as under:
"4. Learned counsel for the appellant submitted that the appellant was already convicted under Section 138 of the Negotiable Instruments Act, 1881 and hence he could not be again tried or punished on the same facts under Section 420 or any other provision of IPC or any other statute. We find force in this submission.
5. It may be noticed that there is a difference between the language used in Article 20(2) of the Constitution of India and Section 300(1) of Cr.P.C. Article 20(2) states:
"no person shall be prosecuted and punished for the same offence more than once."17
6. On the other hand, Section 300(1) of Cr.P.C. States:
"300. Person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221 or for which he might have been convicted under sub-section (2) thereof."
7. Thus, it can be seen that Section 300(1) of Cr.P.C. Is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', Section 300 (1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts.
8. In the present case, although the offences are different but the facts are the same. Hence, Section 300 (1) of Cr.P.C. Applies. Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Cr.P.C."
15. In the case of Feroz Alam Vs. State of C.G. decided on 28.2.2009 in Cr.M.P. No. 36 of 2009 it has been held by this Court as under:
"10. In the instant case, offence under Section 7A (2) (c) of the Factories Act, 1948 read with Rule 73 of the 18 Chhattisgarh Factory Rules, 1962 and Sections 88, 92 of the Factories Act, 1948 read with Rules 108 (1) & 108 (4) of the Chhattisgarh Factory Rules, 1962 are mainly related to taking necessary steps for safety of the persons employed in the factory with a view to save them from any casualty and offence of causing death by doing any rash and negligent act punishable under Section 304A of the IPC is distinct from offence under Section 92 of the Factories Act, 1948. A person may be tried for offence punishable under section 92 of the Factories Act, 1948 as well as under Section 304A of the IPC separately and both the offences are not one and the same or not based on same facts. The Court below has rightly rejected the application for discharge of the applicant and it has not committed any illegality or infirmity in the order impugned."
16. Considering the facts and circumstances of the case in particular the fact that both the cases arise out of the same incident dated 10.12.2013 occurred in Salasar Steel and Power Company Ltd. where one of its labourers namely Silvanus Tirki suffered head injury, this Court is of the opinion that in view of the decision of the Apex Court in Kolla Veera (supra) the petitioner No.4 cannot be prosecuted again for the offence punishable under Section 304-A IPC. From the facts it is apparent that even the statement of charges and description of incident in both the cases is one and the same.
17. Accordingly, in my considered view the judgment delivered by this Court in the case of Feroz Alam (supra) is required to be reconsidered by a Bench of two judges in view of decisions of various 19 High Courts, provisions of Section 300 (1) Cr.P.C., Article 20 (2) of the Constitution of India, Section 26 of the General Clauses Act and most particularly the judgment of Supreme Court in the matter of Kolla Veera Raghav Rao (supra). Being so, let the matter be placed before Hon'ble the Chief Justice on administrative side as provided in Rule 32 of the High Court of Chhattisgarh Rules, 2007 for being referred to a Bench of two judges to be decided on the following point:
"Whether initiation of proceedings against the same accused under Section 304-A IPC is permissible under the law even after his conviction by learned Judicial Magistrate (Labour Court) under Section 92 of the Factories Act 1948 and whether the same amounts to double jeopardy particularly when the offence under the Factories Act and the one under Section 304-A IPC arose out of the same incident?
18. Since the matter is being referred to a Bench of two judges for consideration, further proceedings in the criminal case registered against the petitioners for the offence under Section 304-A IPC shall remain stayed until further orders.
Sd/-
(Pritinker Diwaker) Judge Jyotishi 20