Madhya Pradesh High Court
Vijay Parekh vs The State Of Madhya Pradesh on 11 April, 2019
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HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
S.B: HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA
MCRC No.45912/18
VIJAY PAREKH S/O DULICHANDRA PAREKH
Vs.
STATE OF M.P
Shri Vijayesh Atre, Advocate for the petitioner.
Shri Yogesh Kumar Gupta, GA for the respondnt.
O R D E R
(Passed on 11.04.2019) This petition filed under section 482 Cr.P.C seeks to quash the proceedings in RT No.10293/2010 pending before JMFC, Indore under section 287, 304-A IPC and the accused has been sought to be discharged from the charges framed against him in view of the applicability of principle of double jeopardy under Article 20(2) of the Constitution of India and section 300 of the Cr.P.C as the accused has already been convicted and sentenced under section 92 of the Factories Act.
2. As per the prosecution case there was an explosion in the boiler belonging to the factory of the petitioner on 30.04.2012 resulting into serious injuries to the workers of the petitioner viz. Omprakash, Ramesh and Gyanchand, who were immediately admitted in the hospital, however, Omprakash succumbed to his injuries two days later. Criminal Case No.14021/12 was filed by the factory Inspector under section 105 of the Factories Act, 1948.
Digitally signed by Hari Kumar Nair Date: 12/04/2019 10:19:44 -2-This case was disposed of in the Lok Adalat on 13.12.2012 and pursuance to acceptance of charges read out, punishment of imprisonment till rising of the Court along with fine of Rs.45,000/- was imposed. The State of M.P also instituted a criminal case under the provisions of the IPC against the accused and on 27.07.2012 charge under sections 304-A, 287 and 337 of the IPC was filed. Despite having been convicted on the same facts the petitioner/accused has been facing criminal trial for the same cause and such exercise is violative of Article 20(2) of the Constitution of India as also against the provision of section 300 of the Cr.P.C. It has been submitted that in view of the Factories Act, which is a special Act, provisions of General Act i.e IPC do not apply especially when accused has been convicted by seeking recourse to special Act. Thus, it is prayed that appropriate directions be issued for quashing of proceedings pending before the JMFC, Indore in Regular Criminal Trial No.24961/12.
3. Learned counsel for the State has not challenged the fact that petitioner has already been convicted and sentenced under the provisions of the Factories Act.
4. Learned counsel for the petitioner has cited an order passed by a coordinate Bench of this Court in the case of Neeraj Verma vs. State of M.P in MCRC No.3222/15 dated 30.09.2015 in which it has been laid down that when the accused was convicted under section 92 of the Factories Act the proceedings under the provisions of the IPC could not continue in view of the provisions of section 300 Cr.P.C and Article 20(2) of the Constitution of Digitally signed by Hari Kumar Nair Date: 12/04/2019 10:19:44 -3- India. In view of this citation it has been prayed that the regular criminal trial be quashed.
5. It would be appropriate to consider the order pronounced by the coordinate Bench. The coordinate Bench in coming to the conclusion had come across two judgments of Jharkhand High Court which were contrary to each other. In Ashwini Kumar Singh and another vs. State of Jharkhand 2007 (2) JCR 334, it has held that case under the General Act do not lie when accused was already convicted because of the applicability of the provisions of the Constitution (Article 20(2)) and section 3oo of the Cr.P.C. However, subsequently another Single Bench of the same High Court i.e. Ejaj Ahmad vs. State of Jharkhand in Cr.M.P No.911/2007 dated 03.09.2009 held that offence under section 92 of the Factories Act is different from offence under the IPC and, therefore, provisions of section 300 Cr.P.C and Article 20(2) of the Constitution do not apply. Thus, there were two contradictory judgments of the Jharkhand High Court in respect of the same subject matter.
6. The coordinate Bench considered that the Karnataka High Court in the case of Sri Sridhar Punachithya and others vs. State of Karnataka & another in Criminal petition No.2408/14 had held the same view as held by the Jharkhand High Court in the case of Ashwini Kumar singh's case (supra) and the coordinate bench ultimately considered the judgment of Ashwini Kumar Singh (supra) to be the correct one on the issue and concluded that case under the IPC was barred in view of the principle of double jeopardy.
Digitally signed by Hari Kumar Nair Date: 12/04/2019 10:19:44 -4-7. The coordinate Bench had also considered another judgment of the Chhatisgarh High Court pronounced in the case of Firoz Aalam vs. State of Chhatisgarh in Criminal Miscellaneous Petition No.36/09 delivered on 28.02.2009. The Chhattisgarh High Court had taken a view that Factories Act contained no punishment for rash and negligent act and, therefore, provisions of Section 300 Cr.P.C and Article 20(2) of the Constitution of India were not applicable. The coordinate Bench, however, was not satisfied with the view point taken by the Chattisgarh High Court. Ultimately, the coordinate Bench was of the same line of thought as of Jharkhand High Court in Ashwini Kumar Singh's case (supra) and Karnataka High Court in Sri Sridhar Punachithya's case (supra) as against two contrary judgments of Jharkhand High Court and Chhatisgarh High Court.
8. Although as per principles of stare decis this Court is bound by the earlier Single bench judgment of the same High Court, however, compelling circumstances exist for arriving at a different opinion. All the judgments which have been considered by the coordinate Bench were decisions of Single Benches. However, a Division Bench of the Allahabad High Court in the case of Y.P. Mehrotra and others vs. State of U.P and another (1993) III LLJ 581 All has held that the provisions of Factories Act and Rules do not cover the same area as is earmarked by the Indian Penal Code. An offence under section 304-A IPC and offence under Factory Act and Factory Rules operate in different fields. They flow in different channels.
Digitally signed by Hari Kumar Nair Date: 12/04/2019 10:19:44 -5-9. In the above citation, excerpts of para-8 are being reproduced as under:
"A combined reading of the provisions of Section 92, 105 and 106 of the Act clearly demonstrates that the inquiry contemplated in Section 88 read with Rule 110 is confined to the purposes of the Act and to the oneness committed under the Act. They have no bearing whatsoever upon the inquiry into any contravention of any provisions of the penal law of the land, the prosecution therefor and the punishment for its contravention.
10. The coordinate Bench of this High Court in Neeraj Verma's case (supra) was of the view that Factories Act being a special law shall prevail over provisions of Indian Penal Code which is a General Law.
11. This issue was also raised before the Allahabad High Court which considered section 5 of IPC providing for exclusion of Penal Code in view of special law and held that this provision would be applicable if the provisions under the Code cover the same area as in the Factories Act. Recourse was taken to an Apex Court judgment of Mam Ram vs. Union of India AIR 1980 SC 2147 in which it has been held if a special or local law exists covering the same area, the same shall prevail.
12. The Allahabad High Court was of view that provisions of Factory Act do not operate in the same field as provisions of Indian Penal Code and, therefore, provisions of section 5 of Indian Penal Code are not applicable.
13. To add to the observation of the Division Bench of Allahabad High Court, it may also be seen that there is no non Digitally signed by Hari Kumar Nair Date: 12/04/2019 10:19:44 -6- obstante clause in the Factories Act providing for exclusion of applicability of all other laws including general law.
14. Considering the case in hand, accused Vijay Parekh was considered guilty of offence under section 88 of Factories Act, read with Rule 7 of Factory Rules, 73J, 7A & 72 of Factories Act read with section 92 which were in respect of following acts/omissions-
1. Not sending the information of accident to Factory Inspector.
2. Running the factory without obtaining appropriate license.
3. Not keeping the attendance register of labourers.
4. Not providing adequate training to the labourers from fire.
5. Not adopting safety mechanisms resulting in fire in the factor and not installing water hydrate line and fire pump hose.
15. The above omissions are absolutely different from specific wordings of section 304A IPC which specifies "causing of death by doing any rash or negligent act not amounting to culpable homicide." The special Act (Factories Act) does not encompass offence committed due to rash and negligent act. The coordinate Bench in Neeraj Verma's case (supra) has opined that an omission can be rash and negligent. However, it must be seen that Factories Act penalizes only omissions but not such omission as amounting to rash and negligent act. The Factories Act considers only omissions but not acts whereas provisions of IPC encompasses not only omissions but acts as well.
Digitally signed by Hari Kumar Nair Date: 12/04/2019 10:19:44 -7-16. The Factories Inspector while submitting complaint case under Factories Act confined his complaint only with respect to breaches under Factories Act. The complaint did not contain documents which are necessary for consideration for trial under the provisions of Penal Code such as section 287, 304A etc. for which the concerned Police authorities were competent investigating agency. Hence, the trial Court, while considering complaint under the Factories Act could not have framed charges under the provisions of Penal Code and it is here that Allahabad High Court judgment of Y.P. Mehrotra (supra) assumes significance in which it has been laid down that provisions of Factories Act operate under different field from provisions of Penal Code.
17. Provisions of section 300 Cr.P.C are applicable when the presiding officer was in a position to frame charge under provisions of Penal Code along with provisions of Factories Act while considering the complaint case filed under provisions of Factories Act. However, as already stated, with no documents on file available pertaining to offences under IPC, it was not possible to do so. Hence, provisions of section 300 Cr.P.C could not have been applicable in this case.
18. Thus, principle of double jeopardy is not applicable in the present case in my humble view. Consequently, I am unable to agree with the view expressed by coordinate bench of this Court expressed in the case of Neeraj Verma vs. State of Madhya Pradesh in M.Cr.C.No. 3222/2015 dated 30.09.2015 and express agreement with the view held by the Division Bench of Allahabad Digitally signed by Hari Kumar Nair Date: 12/04/2019 10:19:44 -8- High Court in the case of Y.P. Mehrotra and others vs. State of U.P and another (1993) III LLJ 581 All, and Single bench judgments of Jharkhand High Court in Ejaj Ahmad vs. State of Jharkhand in Cr.M.P No.911/2007 dated 03.09.2009 and of Chhatisgarh High Court in Firoz Aalam vs. State of Chhatisgarh passed in Criminal Miscellaneous Petition No.36/2009 delivered on 28.09.2009.
19. I ultimately hold the considered view that provisions of Factories Act and that of corresponding provisions of Indian Penal Code operate in different fields and even though a person is convicted under the Factories Act, he would still be liable for committing offences under provisions of Indian Penal Code and principle of double jeopardy as provided under Article 20(2) of the Constitution of India and section 300 Cr.P.C are not applicable in such cases.
20. In view of difference of opinion with that of coordinate bench, the matter is proposed to be referred to a larger Bench for opinion on the following question:
Whether judgment/order pronounced in respect of a complaint governing provisions of Factories Act and Rules prohibit separate trial in respect of offences under the Indian Penal Code in view of section 300 Cr.P.C and Article 20(2) of the Constitution of India?
21. Let the matter be placed before the Hon'ble Chief Justice on administrative side for constitution of larger Bench.
(SHAILENDRA SHUKLA)
hk/ JUDGE
Digitally signed by Hari Kumar Nair
Date: 12/04/2019 10:19:44