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2000 DIGILAW 591 (RAJ)

Jitendra Singh v. State of Rajasthan

2000-05-07

G.L.GUPTA

body2000
JUDGMENT 1. - This misc., petition is directed against the order dated 31.7.1997 and 21.11.1997 passed by the learned Addl. Chief Magistrate No. 2, Jodhpur whereby he reviewed/recalled order dated 16.8.1996. 2. The facts necessary to dispose of the petition are these. The Senior Inspector Factories and Boilers, Jodhpur filed a criminal complaint against Jitendra Singh (petitioner) on 24.8.1993 wherein it was stated that there was accident in the factory M/s. Asiatic Traders belonging to petitioner, in which two persons got serious injuries, the information of which was received by the Inspector on 18.5.1993, whereupon he inspected the establishment of Jitendra Singh on 5.6.1993 and noticed that there were no fixed guards or automatic on interlocking guards on the four power process machines, which were working in the factory. It was prayed that Jitendra Singh be convicted under Section 92 of the Factories Act, 1948 and a direction be issued under Section 102 that he fixed guards over the power process machines. On this complaint notice was issued to Jitendra Singh, who appeared on 16.8.1996. On that day, Jitendra Singh made a request that in view of the judgment of the Supreme Court in the case of Common Cause A Registered Society v. Union of India the proceedings be closed. The learned Magistrate accepted the request and closing the proceedings acquitted Jitendra Singh. Thereafter, because of the clarificatory judgment of the Supreme Court, the complainant filed an application on 25.2.1997 for restoring the criminal case decided on 16.8.1996. The learned Magistrate vide order dated 31.7.1997 restored the Criminal Case No. 332/93 and issued notice to Jitendra Singh (petitioner). This order is under challenge in this misc. petition. 3. The contention of Mr. Singh was two fold. One, the complaint was not filed within three months from the date of alleged fact came to the notice of the inspector and therefore, the cognizance was barred under Section 106 of the Factories Act, 1948. Two, the case should not have been restored on the basis of the judgment of the Apex Court in the Second Common Cause case as it was not covered by the directions given in that case. 4. There is not substance in the first contention. Two, the case should not have been restored on the basis of the judgment of the Apex Court in the Second Common Cause case as it was not covered by the directions given in that case. 4. There is not substance in the first contention. Under Section 106 of the Factories Act cognizance can be taken by a Court within 3 months from the date, on which the commission of the offence comes to the knowledge of an Inspector. In the complaint it is alleged that the accident came to the notice of the Inspector on 18.5.1993. It is further alleged that on 5.6.1993 when the complainant inspected the establishment it was noticed that the guards were not fixed on the power process machines. 5. The relevant date for the purpose of Section 106 of the Factories Act is 5.6.1993 and not 18.5.1993. On 18.5.1993 the Inspector did not come to know that there was violation of the provisions of Factories Act and it is only on 5.6.1993 that he, on inspection of the establishment, came to know that the provisions of the Factories Act regarding safety were contravened. Section 92 of the Factories Act punishes contravention of any of the provisions of the Act. As the Inspector came to know about the contravention of the provisions of the Act on 5.6.1993 and the complaint was filed, on 24.8.1993, it cannot be said that the same was not filed within limitation provided for in Section 106 of the Act. 6. There is merit in the second contention of Mr. Singh. The case against Jitendra Singh was that he had contravened provisions of Section 92 of the Factories Act, 1948 and Rule 53 of the Rajasthan Factories Rules, 1951. The maximum sentence provided for under Section 92 of the Act is 2 years. In the Factories Act, it is not laid down that the offence under the Act is cognizable and non-bailable, therefore, Part-II of the Schedule appended to the Code of Criminal Procedure will apply. As the offence is punishable with imprisonment less than three years or with fine it will be treated as non cognizable and bailable. 7. The Apex Court in the case 'Common Cause' A Registered Society v. Union of India, (1996 Cr LR (SC) 430 ) had made certain directions applicable to the cases pending in the various Courts of the country. 7. The Apex Court in the case 'Common Cause' A Registered Society v. Union of India, (1996 Cr LR (SC) 430 ) had made certain directions applicable to the cases pending in the various Courts of the country. Relevant Para 2(c) is reproduced hereunder:- "2(c) Where the cases pending in Criminal Court under IPC or any other law for the time being in force pertain to offences which are non-cognizable and bailable and if such pendency is for more than two years and if in such cases trials have still not commenced, the Criminal Court shall discharge or acquit the accused, as the case such cases." 8. The case under the Factories Act, as already stated; is non-cognizable and bailable. On the date 16.8.1996 the order, closing the case, was passed by the Magistrate, the case was pending for 3 years as the complaint had been filed on 24.8.1993. The case clearly fell in category 2(c) and the Magistrate was bound to close the case. 9. The next question is if the clarification made by the Apex Court in second case of 'Common Cause' A Registered Society v. Union of India, 1997 SC-1539 ) required the restoration of the case by the Magistrate. At para No. 1 of the judgment it was directed that if the delay in the disposal of the case was attributable to the accused the benefit of the judgment of the first Common Cause shall not be available to the accused. At para 2 of the judgment the phrases 'pendency of the trials' and 'non-commencement of trial' employed in para 1 of the first judgment of the Common Cause were explained. In para 2 (c) of the first judgment the phrase used in the non-commenced of the trial. In the second judgment it has been stated that in case of trials of summons cases by Magistrate the trials would be considered to have asked under Section 251 whether they plead guilty or have any defence to make. Thus, the trial commences on the date the charge is read over to the accused and his plea is recorded. 10. In the instant case, on the date 16.8.1996 when the proceedings were closed accusation had not been read over to the accused petitioner. It is obvious that the trial had not commenced by that date. Thus, the trial commences on the date the charge is read over to the accused and his plea is recorded. 10. In the instant case, on the date 16.8.1996 when the proceedings were closed accusation had not been read over to the accused petitioner. It is obvious that the trial had not commenced by that date. As the trial had not commenced and the case was of non-cognizable nature and was bailable, it clearly fell in the category of cases at para 2(c) of the first judgment. As such, the case could not be restored on the basis of the classificatory judgment of 1997. The learned Magistrate in his order dated 31.7.1997 has not assigned reasons as to how the clarificatory judgment governed the case and the earlier order could be recalled. 11. Consequently, the petition succeeds. The impugned order is set aside. The case against the petitioner shall be treated as closed vide order dated 16,8.1996.Petition allowed. *******