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1999 DIGILAW 469 (CAL)

BHASKAR GUPTA v. A. K. CHATTOPADHYAY

1999-08-25

DEBIPRASAD SENGUPTA

body1999
DEBIPRASAD SENGUPTA, J. ( 1 ) THIS revisional application is for quashing of a proceeding, being Case No. C-138 of 1997, in the Court of the learned Chief Judicial Magistrate, Barasat, North 24 Parganas, under Section 92 of the Factories Act, 1948, for contravention of Rule 51 of the West Bengal Factories Rules, 1958, and the provisions of Sections 41 and 112 of the Factories Act, 1948. ( 2 ) THE present petitioners were made accused in a case being Case No. C-138 of 1997, pending before the learned Chief Judicial Magistrate, North 24 Parganas, Barasat, on the accusation of having committed offences punishable under Section 92 of the Factories Act, 1948, for contravention of Rule 51 of the West Bengal Factories Rules, 1958, and the provisions of Section 41 and Section 112 of the Factories Act, 1948. The said case was initiated on the basis of a petition of complaint lodged by opposite party No. 1 herein before the learned Chief Judicial Magistrate, North 24 Parganas at Barasat. In the petition of complaint it was alleged that on November 19, 1996, the opposite party held an enquiry in the factory of the petitioners situated at 1, Sagar Duttaghat Road, P. 5, Kamarhati Belghoria, Calcutta- 58, in order to enquire into the causes and circumstances leading to a fatal accident to a workman named Palak Chatterjee working as a contractor's supervisor on November 15, 1996, at about 8. 30 a. m. which resulted in his death at about 3. 00 am. on November 16, 1996, at N. R. S. Medical College and Hospital. It was alleged in the petition of complaint that the manager of the factory did neither inform verbal or over the telephone or by telegram, nor did he send any written report to the Inspector of Factories in time about the said fatal accident. It was further alleged that in course of enquiry it was ascertained that the deceased workman entered into the factory on November 15, 1996, and started working at about 8 a. m. in the reeling section of the factory along with five workmen to remove a soft solid cylinder wooden button block from a dry hard cement concrete foundation bed known as "dead load material". It was alleged that in a wrong method of work done unsafe, the deceased attempted to lift the said wooden block by using the jib crane instead of cutting manually chisel or hammer in the absence of forbearance from the management of the factory. The deceased pierced a steel rod on the projected portion of the wooden block and attached it to the jib arm of the crane. Thereafter, the deceased himself pulled the jib crane as a result the jib arm broke and fell down on his head and the victim was seriously injured. He was immediately removed to N. R. S. Hospital, where he succumbed to his injuries. It was alleged in the complaint that the said process of work was wrong and totally unsafe. On the basis of the aforesaid allegations it was alleged that the petitioners contravened the provisions of Rule 51 of the West Bengal Factories Rules, 1958, read with Sections 41 and 112 of the Factories Act, 1948, as amended up to date, and are thereby punishable under Section 92 of the said Act. ( 3 ) ON receipt of the petition of complaint the learned Magistrate by an order dated February 10, 1997, took cognizance of the offence and issued process against the petitioner. ( 4 ) MR. Ghosh, learned advocate appearing for the petitioner, submits that the allegations in the petition of complaint and the investigation report when read in the light of the statements of the persons examined by opposite party No. 1 in the course of such enquiry, which is the basis of the enquiry report appear to be patently absurd and inherently improbable. Mr. Ghosh submits that the allegations made in the petition of complaint are wholly perverse and contrary to the statements of the persons recorded by opposite party No. 1 in the course of such enquiry. According to Mr. Ghosh, the learned advocate of the petitioners, the statements form the basis of the enquiry report of opposite party No. 1 on the basis of which the petition of complaint was filed. The said statements are annexed to the petition of complaint and are integral part thereof. According to Mr. Ghosh, the learned advocate of the petitioners, the statements form the basis of the enquiry report of opposite party No. 1 on the basis of which the petition of complaint was filed. The said statements are annexed to the petition of complaint and are integral part thereof. Read in the light of the said statements the allegations that the present petitioners required and allowed the deceased to work in such a manner as to cause risk of bodily injury to the person employed thereunder is rendered patently absurd and improbable. Mr. Ghosh submits that from the aforesaid statements of co-workmen as recorded by opposite party No. 1 in course of enquiry, which forms the basis of the enquiry report, it appears that there were specific instructions from the management of the said company to execute the work by using chisel and hammer but in spite of the said specific instructions, the deceased workman chose to follow a different procedure in utter disregard to such instruction. According to Mr. Ghosh, these statements strike at the very root of the prosecution case that the owner/occupier allowed the deceased employee to adopt a process of work which caused risk of fatal injury to persons employed therein. Mr. Ghosh further submits that the learned Magistrate acted mechanically in setting the criminal law into motion by summoning the petitioners as accused persons. The impugned order passed by the Learned Magistrate summoning the petitioners does not reflect that the learned Magistrate has applied his mind to the statements of the co-workers, which are integral part and annexed to the petition of complaint. So, according to Mr. Ghosh, in the facts and circumstances of the case and the materials on record, the continuation of the present proceedings against the petitioners will be an abuse of the process of the Court and the same is liable to be quashed. ( 5 ) MR. Sudipto Moitra, learned Additional Public Prosecutor appearing for the State, submits that the allegation made in the petition of complaint supported by the statements of the witnesses recorded by opposite party No. 1 clearly make out an offence against the present petitioners. Mr. Moitra further submits that at this initial stage of the proceeding this Court should not quash the proceeding. Mr. Moitra further submits that at this initial stage of the proceeding this Court should not quash the proceeding. ( 6 ) I have carefully gone through the petition of complaint, the statements of witnesses recorded by opposite party No. 1, which are annexed to the petition of complaint and also other connected papers and I find sufficient merit in the submissions made by Mr. Ghosh, the learned advocate of the petitioners. The gist of the allegation in the petition of complaint is that the petitioners, being the occupier and manager of the factory, allowed the workman to work in such a manner which caused risk of bodily injury to the person employed in such work. It is further alleged that no useful supervision of work was done by the management to ensure a safe method of work. But from the statements of witnesses, which form an integral part and also annexed to the petition of complaint, it becomes clear that the allegations made in the petition of complaint are totally absurd and improbable. The said statements are totally contrary to the allegations made in the petition of complaint. These statements are the basis of the enquiry report which is an integral part of the petition of complaint and strikes at the very root of the prosecution allegation. Simply because an. accident had taken place leading to the unfortunate death of a workman, it does not necessarily follow that there was any overt act of commission or omission on the part of the occupier and/or manager involving breach of statutory duty so as to attract penal consequences under Section 92 of the Act. ( 7 ) IN the result, the revisional application succeeds and the same is allowed. The impugned proceeding, being Case No. C-138 of 1997, in the Court of learned Chief Judicial Magistrate, North 24 Parganas at Barasat, under Section 92 of the Factories Act, 1948, is quashed.