Karnataka High Court
Ramakanth Sharma And Anr vs The State Of Karnataka on 10 January, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2024:KHC-K:409
CRL.P No. 200956 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION NO. 200956 OF 2022 (482)
BETWEEN:
1. RAMAKANTH SHARMA
AGE: 65 YEARS, OCC: DIRECTOR/OCCUPIER,
M/S SHREE CEMENT LTD,
R/O BENAKANHALLI AND KODLA VILLAGE,
TQ. SEDAM, DIST. KALABURAGI.
2. ARVINDKUMAR PATIL
AGE: 65 YEARS, OCC: DIRECTOR/OCCUPIER,
M/S SHREE CEMENT LTD,
R/O BENAKANHALLI AND KODLA VILLAGE,
TQ. SEDAM, DIST. KALABURAGI.
...PETITIONERS
(BY SRI BABURAO MANGANE AND
Digitally signed by SMT. NEEVA M. CHIMKOD, ADVOCATES)
SHILPA R
TENIHALLI AND:
Location: HIGH
COURT OF 1. THE STATE OF KARNATAKA
KARNATAKA
SEDAM P.S
(REPRESENTED BY
ADDL. H.G.P. HIGH COURT,
KALABURAGI-585103.)
2. SRI. VENKATESH RATHOD,
AGE: MAJOR,
OCC: DEPUTY DIRECTOR OF FACTORIES,
KALABURAGI, DIVISION KALBURAGI.-585102.
...RESPONDENTS
(BY SRI. JAMADAR SHAHABUDDIN, HCGP R1 AND R2)
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NC: 2024:KHC-K:409
CRL.P No. 200956 of 2022
THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO,
ALLOW THE PETITION AND QUASH THE PROCEEDINGS
PENDING IN C.C. NO. 520/2018, PENDING BEFORE THE CIVIL
JUDGE AND JMFC COURT, SEDAM DISTRICT-KALABURAGI.
THIS PETITION COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C. for quashing the entire proceedings in C.C.No.520/2018, pending on the file of the learned Civil Judge and JMFC, Sedam, registered for the offence punishable under Section 47 of the Building and Other Construction Workers Act, 1996.
2. The allegations against the petitioners are that accused No.1/petitioner No.1 is the Director/Occupier of M/s. Shree Cement Limited, while accused No.2/petitioner No.2 was working as a Manager/Unit Head of M/s. Shree Cement Limited. It is alleged that accused Nos.1 and 2 entered into an agreement with the company of accused No.3 for construction in the premises of M/s. Shree Cement Limited and accused No.3 in turn given the sub contract to accused No.4. According to the complaint -3- NC: 2024:KHC-K:409 CRL.P No. 200956 of 2022 allegations, on 02.08.2018 around 8.00 p.m., at the stacker and reclaimer shed construction site of M/s. Shree Cement Limited, few construction workers suffered injuries consequent to sudden cav-in of roof trusses, which were in erection resulting in the death of six labourers, who were trapped in the caved-in material and one person was grievously injured. The petitioners being the occupiers/directors and in-charge of the administration of the premises, have not taken proper precautions for protection of the interest of the workers engaged in the construction site at the time of erection of trusses, as a result, certain untoward incident did occur, which has resulted in the death of six labourers. Accused No.3 said to have obtained a contract of construction, who in turn entrusted the same by way of sub contract to accused No.4. The complainant after investigating the matter and after getting the information visited the site and subsequently, filed a complaint along with final report. -4-
NC: 2024:KHC-K:409 CRL.P No. 200956 of 2022
3. The learned Magistrate has taken cognizance of the offence and issued process against the accused. The records disclose that accused Nos.3 and 4 have appeared and pleaded guilty and were accordingly, sentenced to pay fine. However, the petitioners, who are arrayed as accused Nos.1 and 2 have approached this Court for quashing the proceedings.
4. Heard the arguments advanced by the learned counsel for the petitioners and the learned High Court Government Pleader for the respondents. Perused the records.
5. The main contention of learned counsel for the petitioners is that though the petitioners are the Director and Unit Head of M/s. Shree Cement Limited, wherein, this incident has occurred, however, they entered into an agreement with M/s.Zamil Construction India Private Limited, represented by accused No.3, who in turn entrusted this construction work by way of sub contract to M/s.K.E. Builders, Bengaluru represented by accused No.4. -5-
NC: 2024:KHC-K:409 CRL.P No. 200956 of 2022 It is alleged that in view of the clauses of the contract, the entire liability was fastened on accused Nos.3 and 4 and accused Nos.1 and 2 cannot be held responsible. The learned counsel has also invited the attention of the Court to the definition of 'factory' and 'occupier' as defined under Section 2(m) and (n) of the Factories Act, 1948. It is submitted that the petitioners have no control and they cannot be termed as occupiers of the construction site as they have handed over the possession and hence, in view of the pleading guilty of accused Nod.3 and 4, their defence is strengthened and hence, they cannot be prosecuted.
6. Per contra, learned High Court Government Pleader would submit that accused Nos.1 and 2 are the principal occupiers and they have entrusted the work to accused Nos.3 and 4, but, total control over the construction site is that of accused Nos.1 and 2 and their status as occupiers cannot be taken away and any contract regarding shifting of criminal liability is a void -6- NC: 2024:KHC-K:409 CRL.P No. 200956 of 2022 contract. Hence, it is submitted that there is prima facie material and the petitioners can substantiate their defence before the Trial Court in the pending proceedings to show that they have taken proper precautions and it is an act of god and there is no negligence on their part. Hence, he would seek for dismissal of the petition.
7. Having heard the arguments and perusing the records, the undisputed fact is that the incident has occurred in the premises of M/s. Shree Cement Limited. It is also an undisputed fact that accused No.1 is the Director and accused No.2 is the Unit Head of M/s. Shree Cement Limited. The incident has occurred in the evening on 02.08.2018 at stacker and reclaimer shed construction site as a result of sudden cav-in of roof trusses, which were under erection and certain construction workers were trapped and six persons were succumbed because of the injuries and one person suffered grievous injuries. The records further disclose that accused Nos.3 and 4 have -7- NC: 2024:KHC-K:409 CRL.P No. 200956 of 2022 already paid compensation to the kith and kin, who have succumbed because of the injuries and the injured person.
8. The main contention of learned counsel for the petitioners is that in view of the agreement, the work was entrusted to accused No.3 and since accused Nos. 3 and 4 have pleaded guilty, question of prosecuting petitioners does not arise at all. However, it is a fact that the incident did occur in the factory premises. It is also evident that the entire factory premises was not handed over and a particular area was handed over to M/s.Zamil Construction India Private Limtited, who in turn entrusted the work to M/s.K.E. Builders, Bengaluru. However, the principal occupiers are admittedly accused Nos.1 and 2. Though this aspect has been disputed during the course of arguments, but, in the petition grounds at paragraph No.2, there is a specific pleading that accused No.1 is a Director or occupier while accused No.2 is said to have working as a Manager/Unit Head of M/s. Shree Cement Limited on the date of the alleged incident. Hence, prima facie, it is -8- NC: 2024:KHC-K:409 CRL.P No. 200956 of 2022 evident that they were the in-charge of the premises and they are required to take proper precautions, but, there is no evidence as to what precautions they have taken and if they had taken precautions, the same has to be considered during the course of trial.
9. The learned counsel for the petitioners has invited the attention of the Court to the definition of occupier in Section 2 (n) of the Factories Act, which reads as under:
"2(n) "occupier" of a factory means the person who has ultimate control over the affairs of the factory 7[***]. 8 [Provided that--
(i) in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier;
(ii) in the case of a company, any one of the directors shall be deemed to be the occupier
(iii) in the case of a factory owned or controlled by the Central Government or -9- NC: 2024:KHC-K:409 CRL.P No. 200956 of 2022 any State Government, or any local authority, the person or persons appointed to manage the affairs of the factory by the Central Government, the State Government or the local authority, as the case may be, shall be deemed to be the occupier:] [Provided further that] in the case of a ship which is being repaired, or on which maintenance work is being carried out, in a dry dock which is available for hire,--
(1) the owner of the dock shall be deemed to be the occupier for the purposes of any matter provided for by or under:
(a) section 6, section 7, 13[section 7A, section 7B,] section 11 or section 12;
(b) section 17, in so far as it relates to the providing and maintenance of sufficient and suitable lighting in or around the dock;
(c) section 18, section 19, section 42, section 46, section 47 or section 49, in relation to the workers employed on such repair or maintenance;
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NC: 2024:KHC-K:409 CRL.P No. 200956 of 2022 (2) the owner of the ship or his agent or master or other officer-in-charge of the ship or any person who contracts with such owner, agent or master or other officer-in-charge to carry out the repair or maintenance work shall be deemed to be the occupier for the purposes of any matter provided for by or under section 13, section 14, section 16 or section 17 (save as otherwise provided in this proviso) or Chapter IV (except section 27) or section 43, section 44 or section 45, Chapter VI, Chapter VII, Chapter VIII or Chapter IX or section 108, section 109 or section 110, in relation to--
(a) the workers employed directly by him, or by or through any agency; and
(b) the machinery, plant or premises in use for the purpose of carrying out such repair or maintenance work by such owner, agent, master or other officer-in- charge or person;]"
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NC: 2024:KHC-K:409 CRL.P No. 200956 of 2022
10. As per proviso (i), in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier. In the instant case, it is the specific assertion of the prosecution that both the petitioners are the occupiers and this fact is also admitted in the grounds of the petition. Merely because they have entrusted the work to M/s.Zamil Construction India Private Limited, they cannot seize to be the principal occupiers.
11. The definition of the 'factory' is defined under Section 2(m) of the Factories Act and as per the said provision, in the present case admittedly, the incident has occurred in the factory premises. Considering these aspects, the arguments regarding contract between the M/s. Shree Cement Limited and M/s.Zamil Construction India Private Limited and fastening the liability on /s.Zamil Construction India Private Limited and they pleading guilty has no relevancy as the contract, if any, would be
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NC: 2024:KHC-K:409 CRL.P No. 200956 of 2022 pertaining to civil liability and a criminal liability cannot be transferred by way of contract.
12. Further, in the decision of the Hon'ble Apex Court reported in AIR 2021 Supreme Court 1918 in the case of M/s.Neeharika Infrastructure Pvt. Ltd., vs. State of Maharashtra and Others, certain guidelines have been laid down for entertaining the petitions under Section 482 of Cr.P.C. It is also observed in the said case that only in exceptional cases, the High Court shall entertain such petitions for exercising inherent powers and it should be in a rarest of rare cases. But, no evidence is forthcoming to show that this petition falls under the category of exception cases as provided in the Neeharika's case (supra). Hence, the question of quashing the proceedings does not arise at all and the remedy for the petitioners is to appear before the learned Magistrate and agitate their defence. As such, the petition being devoid of any merits, needs to be dismissed. Accordingly, I proceed to pass the following:
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NC: 2024:KHC-K:409 CRL.P No. 200956 of 2022 ORDER The petition stands dismissed.
Sd/-
JUDGE SRT List No.: 1 Sl No.: 31