Jharkhand High Court
Binod Kumar Mittal vs The State Of Jharkhand on 7 January, 2013
Author: R.R. Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P.No.1165 of 2012
Binod Kumar Mittal ...................................... Petitioner
VERSUS
State of Jharkhand ...................................Opposite Party
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner :M/s. M.M.Sharma and K.M.Verma
For the State :Mr.Tapas Kabiraj, A.P.P
6/ 7.1.13. Heard learned counsel appearing for the petitioner and learned counsel appearing for the State.
This application has been filed for quashing of the order dated 8.3.2011 whereby and whereunder the then Chief Judicial Magistrate,Seraikella- Kharsawan took cognizance of the offences punishable under Sections 287 and 304(A) of the Indian Penal Code.
It appears that one Janmajay @ Jarmendra Manjhi who was working in M/s. Mohit Deo Flour Mill died when he met with an accident on 24.8.2010 while he was working in the factory. When such information was given to the Factory Inspector, he visited the Flour Mill. He having enquired into the matter found that since the plant shifter had not been fenced and that the work was being taken over that machine without there being any supervision of supervisor, accident took place in which the deceased died.
On coming to such finding, a complaint was lodged which was registered as G.P. No.125 of 2010 in which cognizance of the offence under Section 92 of the Factories Act was taken, vide order dated 23.11.2010.
In spite of that for the same incident an F.I.R was lodged which was registered as Adityapur P.S. Case no. 247 of 2010 wherein it has been alleged that Factory Manager without providing safety belt, shoes etc. asked the deceased worker to do work over the machine and while he was doing the work, he fell down and died.
The matter was investigated upon. On completion of investigation, charge sheet was submitted, upon which cognizance of the offence was taken under Sections 287 and 304(A) of the Indian Penal Code against the petitioner, who happens to be the Manager of the Factory, vide order dated 8.3.2011 which is under challenge.
Mr. Sharma, learned counsel appearing for the petitioner submits that whatever allegation is there in the F.I.R, that would be the subject matter for prosecution under the Factories Act and the Factories Act, 1948 being a special legislation will have overriding effect upon the provisions of the general law and therefore, any prosecution under the general law is not permissible and hence, the order taking cognizance is fit to be quashed.
A counter affidavit has been filed wherein it has been reiterated that since the deceased was allowed to work without providing safety measures, occurrence took place and therefore, the petitioner can be said to have committed offence under Sections 287 and 304(A) of the Indian Penal Code.
In the context of the stand taken on behalf of the parties, one needs to take notice of the provision as contained in Section 4 of the Code of Criminal Procedure which deals with the matter regarding investigation and enquiry of the case falling under the Indian Penal Code or any Special Act which reads as under:
" Trial of offence under the Indian Penal Code and other law:-
1. All offences under the Indian Penal Code (46 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."
Thus, sub-Section (1)of Section 4 of the Code provides that in absence of any specific provision to the contrary nothing in the code shall affect any special or local law for the time being in force. However, the conjoint effect of that provision and sub-Section (2) of Section 4 would be as follows:
" 1. That all offences, whether under the penal code or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code.
2. This rule is subject to qualification that in respect of offences under other laws that is to say, under laws other than Indian Penal Code, if there be an enactment regulating the manner of investigation, inquiring into, trying or otherwise dealing with such offences, such enactment will prevail over the code.
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 of the Factories act reads as follows:-
" General penalty for offences - Save as is otherwise expressly provided in this Act and subjected 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 an 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 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 1st 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 offences 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.
Under the circumstances, the entire criminal proceeding of Adityapur P.S case no.247 of 2010 under which cognizance of the offence was taken under Sections 287 and 304(A) of the Indian Penal Code is hereby quashed.
In the result, this application stands allowed.
(R.R. Prasad, J.) ND/