A. S. Poplai v. State Of Bihar — 1988 DIGILAW 401 (PAT)

Judgment Bhuvaneshwar Prasad, J. 1. This application under Sec. 482 of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the prosecution of the petitioner in Complaint Case No. 339C/2 of 1982 under Section 92 of the Factories Act, 1948 (in short the Act) pending in the court of Shri M. A. Baki, Judicial Magistrate 1st class Hunger, in which the learned Magistrate has, on 28-6-1983, ordered for issuing of summons against the petitioner. 2. It appears that on 3-8-1982 opposite party No. 2 who happened to be the Inspector of Factories, Monghyr Circle, Monghyr filed a complaint petition in the court of the Chief Judicial Magistrate, Monghyr making allegations under Section 92 of the Factories Act against the persons named in the complaint petition. It was alleged that an accident has taken place in the Cigarette Factory of I. T. C. at Monghyr on 25-4-1982 in which a machine operator, namely, Ashok Kumar Sharma got three fingers of his right hand injured. On enquiry it found that in the machine No. 585 there was no protective cover or safeguard on the deflector resulting in this accident. Accordingly the complaint petition under Section 92 of the Factories Act, 1948 for violation of Sections 88, 21(1) (iv) and Rules 55-A and 96 of the Bihar Factories Rules, 1950 (in short the Rules) was filed. In this complaint petition allegations were made against five persons who were shown in the column of accused. However, the learned Chief Judicial Magistrate treated this complaint petition only against four persons and not against the fifth person (who happens to the present petitioner). After taking cognizance of the case against those four persons (not the present petitioner) he passed an order for issuing of summons to them and transferred the case to the court of Shri M. A. Baki, Judicial Magistrate, 1st Class Monghyr. 3. The four persons against whom the cognizance was taken moved this Court for quashing their prosecution and by an order dated 22-3-1983 passed in Criminal Misc. No. 6568 of 1982 the proceeding against them was quashed.. The petitioner, who was named as one of the accused in the complaint petition, did not join those four persons in the said Criminal Miscellaneous Case inasmuch as by the said order the Chief Judicial Magistrate had not taken cognizance against him. No. 6568 of 1982 the proceeding against them was quashed.. The petitioner, who was named as one of the accused in the complaint petition, did not join those four persons in the said Criminal Miscellaneous Case inasmuch as by the said order the Chief Judicial Magistrate had not taken cognizance against him. When the record of the case was received by the learned Judicial Magistrate, he, by his order dated 28-6-1983 discharged the aforesaid four persons in terms of the order passed by this Court in the above mentioned Criminal Miscellaneous case. He, however, ordered for issuance of uummons against this petitioner. 4. In this petition it has been contended that the learned Magistrate issued summons against the present petitioner under a mistaked notion that he (petitioner) was also an accused along with the other four persons named in the complaint petition against whom the cognizance was taken. By doing so the learned Judicial Magistrate has committed a grave error of record in failing to take note of fact that the learned Chief Judicial Magistrate took cognizance only against the four persons named by him in his order and not against the present petitioner. As such the entire criminal proceeding initiated against the present petitioner is wholly illegal and without jurisdiction. Further the prosecution of the petitioner is barred by law of limitation as no complaint against him could be entertained after three months of the alleged occurrence. No case against the petitioner has been made out under Section 88 of the Act. The provisions of Sec.21(1) (iv) or Rule 55-A of the Rules are not attracted. On these grounds, amongst others, it was prayed that impugned order as well as the entire proceeding in Case No. 339C/2 of 1982 against the petitioner pending in the court of Shri M. A. Baki, Judicial Magistrate, 1st Class, Monghyr be quashed. 5. The only point for decision before me is whether this application is fit to be allowed or not. 6. Annexure-T is the complaint petition. No doubt in it the name of the present petitioner figures as an accused, as he has been described under the heading "Manager" whereas other accused were described under the heading "occupier" of the Factory. The name of the factory has been disclosed as. I. T. C. Limited Monghyr. 6. Annexure-T is the complaint petition. No doubt in it the name of the present petitioner figures as an accused, as he has been described under the heading "Manager" whereas other accused were described under the heading "occupier" of the Factory. The name of the factory has been disclosed as. I. T. C. Limited Monghyr. In this connection a reference has been made to the order dated 3-8-1982 passed by the learned Chief Judicial Magistrate in the case according to which on receipt of the complaint petition he took cognizance of the offence only against the four persons whose names find mention in this order. This cognizance was taken under Section 92 of the Act. On behalf of the petitioner it has been submitted that the instant case is not one of those in which an order taking cognizance of the offence, simpliciter, has been passed. If on the receipt of the complaint petition from the Factory Inspector the learned Chief Judicial Magistrate would have simply mentioned in the order that the cognizance was taken it would have naturally meant that the cognizance was taken against all the persons named as accused in the complaint petition. In the present case, however, the situation is quite different. The order dated 3-8-1982 clearly goes to show that the cognizance under Sec.32 of the Act was taken only against the four persons named in this order. On this basis it has been submitted that this order cannot be interpreted to mean that the cognizance was also taken against the present petition since there is specific mention in it of the names of the four persons against whom the cognizance has been taken. 7. As against it Shri S. K. P. Sinha, learned A.P.P., has submitted that the cognizance is taken of the offence and not of the offender and, therefore, notwithstanding the fact that in the order taking cognizance the name of the present petitioner does not find mention, will it mean that the cognizance against him has not been taken ? Generally speaking it may be conceded that there is force in this contention of the learned A.P.P. Whenever the cognizance is taken it will mean that the cognizance is taken of the offence and not only against the offenders named in the complaint petition. Generally speaking it may be conceded that there is force in this contention of the learned A.P.P. Whenever the cognizance is taken it will mean that the cognizance is taken of the offence and not only against the offenders named in the complaint petition. There are numerous examples which on the basis of the cognizance taken in the case a proceeding is initiated against a person who has not even been named as an accused in the complaint petition if subsequently it transpires that on the basis of materials available on record, he had also some hand in the commission of the alleged offence. The situation is, however, different when an accused person has been named in the complaint petition but the learned Chief Judicial Magistrate decides not to proceed against that person and takes cognizance of the offence only against the rest by specifically mentioning their names. This shows that the learned Chief Judicial Magistrate has applied his judicial mind and has exercised his discretion in not initiating the proceeding against one of the accused persons whose name does not find, mention in the order taking cognizance. 8. In the present case from the complaint petition it appears that the four persons have been named as accused as "occupiers" of I.T.C. Factory and the present petitioner has been named as an accused as "Manager" of this Factory. Obviously, these five persons have been named as accused in the case. However, from the order dated 3-8-1982 in which the four persons and not the present petitioner, has been named it appears that the learned Chief Judicial Magistrate proceeded to take cognizance of the offence only against the four persons described as "occupiers" of (he factory and not against the present petitioner who has been described as its Manager. On behalf of the petitioner it has been urged that from this order it would become clear that in exercise of; his discretion the learned Chief Judicial Magistrate had decided not to take cognizance of the offence against the present petitioner and, accordingly, in the order dated 3-84982 taking cognizance of the offence the name of the present petitioner is conspicuously absent. It was further submitted that if really the learned Chief Judicial Magistrate had intended to take cognizance of the offence against the present petitioner also there was no occasion for him to omit his name in the order dated 3-8-1982 specifically when the present petitioners name finds mention in the complaint petition itself. It was pointed out that the very fact that the name of the present petitioner is missing from the order dated 3-8-1982 in which four others have been named clearly goes to show that the learned Chief Judicial Magistrate in exercise of judicial discretion in the matter, had decided not to proceed against the present petitioner who happens to be the Manager of the Factory, and, in a situation like this, it cannot be said that the cognizance was also taken against the present petitioner, notwithstanding the fact that his name does not find mention in the order dated 3-8-1982. I find force in this contention. It is clear that whenever a cognizance is taken simpliciter, it is taken of the offence and not of the offenders. When, however, the learned Chief Judicial Magistrate in exercise of his judicial discretion decides to proceed only against some of the accused persons named in the complaint petition and proceeds to take cognizance of the offence against them only it will naturally mean that the learned Chief Judicial Magistrate had not taken cognizance of the offence against the offender whose name does not find mention in the order. If really the learned Chief Judicial Magistrate had intended to proceed against all the accused persons named in the complaint petition, where was the occasion for him to mention the names of some of the accused only in the order taking cognizance of the offence ? It was enough if he had mentioned in the order that the cognizance is taken of the offence which have naturally meant that the cognizance was taken against all accused persons named in the complaint petition. However, when the Magistrate decides, in exercise of his judicial discretion, to name only some of the accused persons against whom he is taking cognizance of the offence it will naturally mean that he is not taking cognizance of the offence against an accused whose name does not find mention in the order, notwithstanding the fact that he has been named as one of the accused in the complaint petition. In a situation like this, there can be no escape from this conclusion. 9. On behalf of the petitioner it has been submitted that the four accused persons against whom the cognizance was taken had moved this Court in Criminal Misc. No. 6568 of 1J£2 and by an order dated 22-3-1983 this Court had quashed the proceedings against those four persons. Since, however, as per the order dated 3-8-1S82 the cognizance was taken against those persons only and not against this petitioner he did not think it fit to join in the said criminal miscellaneous case. If he would have joined as one of the petitioners in the said case, very likely, the proceedings against him also would have been quashed. Since, however, no cognizance of the offence was taken against him, he thought it unnecessary to join other four accused in the said criminal miscellaneous case. 10. farther it has been submitted that the cognizance taken against the petitioner as also against those four accused persons was barred by law of limitation. In this connection my attention has been drawn to Sec.106 of the Act which provides that no court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months from the date on which the alleged commission of the offence comes to the knowledge of the Inspector. In the present case it appears that 28-4-1982 is the date of the accident. It further appears that this fact came to the knowledge of the Factory Inspector on 3-5-1982. The complaint petition was, however, filed on 3 8-1982 and the same day the cognizance was taken. On behalf of the petitioner it has been submitted that the period of three months prescribed in Sec.108 of the Act will mean only 90 days and if the period from 3-5-1,982 to 3-8-1988 is computed U comes to at least 91 days which is more than 90 days as prescribed in Sec.106 of the Act, As against it, the learned A.P.P. has submitted that according to Sec.3 (35) of the General Clauses Act, 1897 the period of one month shall mean a month reckoned according to the British calendar. Therefore, according to him if the cognizance was taken on 3-8-1982 it was within three months from the date of knowledge on 3-5-1982. 11. Therefore, according to him if the cognizance was taken on 3-8-1982 it was within three months from the date of knowledge on 3-5-1982. 11. Challenging this contention, Shri Braj Kishore Prasad No. 2, the learned Senior Advocate appearing on behalf of the petitioner, has drawn my attention to Sec.144(4) of the Code which provides that no order under this section shall remain in force for more than two months from the making thereof. Shri Prasad has submitted that inspite of the fact that a period of two months has been prescribed in this sub-section it has always been interpreted to be a period of 60 days only. He t has placed reliance on the case of Puran Singh V/s. Mt. Ramjhari Koer reported in AIR 1935 Patna 224 which also says that the period of 60 days contemplated under Sec.144 of the old Code begins to run from the date I on which the notices were issued. This, according to him, will mean that in computing the period of two months as mentioned under Sec.144(6) of the old Code if was only the period of 60 days which was counted. He has also placed reliance on the case of Ram Narain Sah V/s. Parmeshwar Prasad Sah AIR (1942) 29 Patna 414. Here also the period of two months prescribed under Sec.144(6) of the old Code was computed to be the period of 60 days only. In the case of Mahesh Dhanuk V/s. Sakal Mahto, 1973 BBCJ TV-109 where a proceeding under Section 144 of the Code was converted into one under Sec.145 of the Code after the expiry of 60 days, it was held that the proceeding cannot be so converted inasmuch as after the expiry of 60 days the proceeding under Sec.144 of the Code was already dead. On the basis of these decisions Shri Prasad, the learned counsel for the petitioner, has submitted that no cognizance in this case could have been taken against the accused persons of the case though he was firmly of the view that by the order dated 3-8-1982 no cognizance was taken against the present petitioner. Alternatively, however, he has argued that since the date of knowledge was 3-5-1982 the cognizance taken in the case by the learned Magistrate on 3-8-1982 is clearly barred under Sec.106 of the Act since the cognizance was taken after more than 40 days of the alleged offence. Alternatively, however, he has argued that since the date of knowledge was 3-5-1982 the cognizance taken in the case by the learned Magistrate on 3-8-1982 is clearly barred under Sec.106 of the Act since the cognizance was taken after more than 40 days of the alleged offence. I find force in this contention of the learned counsel for the petitioner, 12. The learned A.P.P. has submitted that by the impugned order the learned Magistrate has only ordered for issuance of summons against the present petitioner and what has been barred in terms of Sec.106 of the Act or Section 468(2) of the Code was taking cognizance within the prescribed period and not the issue of process. It was the submission of the learned A.P.P. that Sec.106 of the Act read with Sec. 468 of the Code bars only the taking of cognizance after lapse of the period of limitation. It was his submission that since the order dated 3-8-1982 taking cognizance of the offence would amount to taking cognizance against the present petitioner also, therefore, there was no bar in issuing the summons to him by the impugned order dated 286-1983. I have already discussed this question in detail and according to my findings this submission of the learned A.P.P. cannot be accepted since I have come to the conclusion that by the order dated 3-8-1982 the cognizance was taken only against the four persons named in the order and not against the present petitioner. In support of his contention the learned A.P.P. has placed reliance on the case of Jailok Thakur V/s. The State of Bihar, 1980 BLJ 130 (FB) : 1980 PLJR 1 corresponding to -- in which it was held that what was required in terms of Sec. 468(2) of the Code was that only cognizance should be taken within the period of limitation and the order for issuance of process can be passed even beyond that period. Shri Prasad, the learned counsel for the petitioner, has conceded the ratio of the decision of this case. It was, however, his submission that as per the order dated 3-8-1982 No. cognizance was taken against the present petitioner and, therefore, the impugned order issuing process against him was obviously barred by limitation in terms of Sec.106 of the Act read with Sec. 468 of the Code. I find force in this contention. 13. It was, however, his submission that as per the order dated 3-8-1982 No. cognizance was taken against the present petitioner and, therefore, the impugned order issuing process against him was obviously barred by limitation in terms of Sec.106 of the Act read with Sec. 468 of the Code. I find force in this contention. 13. From the detailed discussions made above, it becomes clear that the impugned order for issuance of summons against the present petitioner as also the entire proceedings against him cannot be sustained in the eyes of law and are, therefore, liable to be quashed. 14. In the result, this application is allowed and the impugned order as well as the entire proceeding against the petitioner are hereby quashed.