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2003 DIGILAW 227 (JHR)

Rajiv Lochan Jain v. State of Jharkhand

2003-02-18

AMARESHWAR SAHAY

body2003
Order Heard the learned counsel for the parties. 2. Being aggrieved by the order dated 27.6.2002 of the trial court in F.A. no. 246 of 2001, rejecting the prayer of the petitioner with his personal appearance in court and appearing through his counsel, the petitioner has challenged the order and has prayed for quashing of the same. 3. The facts of the matter briefly stated are that a complaint in writing was made to the C.J.M. Dhanbad by Nand Kishore Singh, Inspector of Factories Dhanbad Circle no. 2. Dhanbad against the petitioner who was described as Chairman-cum-Managing Director, Indian Explosive Ltd. of New Delhi, as well as against Sri S.C. Mandal, Govind Nagar, Bekar Bandh Dhanbad. which was registered as F.A. no. 246 of 2001 for the alleged contravention of the provision of Section 6 of the Factories Act, 1948 read with rule 3 of Bihar Factories Rules, 1950 and sections 9 and 95 of the Factories Act read with rules 13 and 102 of the Bihar Factories Rules, 1950. 4. The complainant alleged that on receipt of information from reliable source that an Explosive Factory of Indian Explosive Ltd. was under construction in B.C.C.L area, on the way from Jharia to Baliapur Road, the complainant visited the alleged site on 30.12.2000 and found that construction work was going on. Some of the plant were already installed and the rest were in the process of installation. 5. It is further alleged that one Sri R.K. Singh site incharge was present. On enquiry it was found that construction work was started in May 2000 without obtaining prior approval of the site and plan of the factory building which was in contravention of section 6 of Factories Act. 1948 read with Rule 3 of the Bihar Factories Rules, 1950. 6. It is further stated in the complaint petition that Sri S.C. Mandal, Senior Sales Manager was in charge of the Factory in the capacity of Factory Manager and Sri R.L. Jain (Petitioner) was the Chairman-cum-Managing Director of Indian Explosive Ltd. of New Delhi was looking after the work in the capacity of the occupier of the factory. 7. It is further stated that Sri. 7. It is further stated that Sri. R.K. Singh was directed by the Complainant to convey Shri. S.C. Mandal (who was not present at the construction site when the Complainant had visited the site) to appear before the undersigned in the 1st half of 31.12.2002 with all the necessary relevant papers (with respect to approval of plans) for examination and interrogation on the matters connected with compliance of the provisions of the Act or the rules, Shri Mandal appeared before him on 31.1.2000 but did not produce any (relevant) documents. He simply evaded his legal statutory responsibilities by saying that one Shri P.K. Singh of I.C.1. Ltd. was entrusted with the work of approval of plans and he was on leave for a week. He further asserted that after 8.1.2001 he would submit all the necessary required papers. The aforesaid actions of Shri S.C. Mandal were in contravention of the provisions of Sections 9 and 95 of the Factories Act read with rules 13 and 102 of the Bihar Factories Rule, 1950. However, Sri Mandal did not produce any of the relevant papers/documents/informations demanded by the undersigned. 8. It is further alleged that this factory was again visited by the Complainant on 23.1.2001 and, the construction work was going on as usual without approval of the site and plan of the factory from this inspectorate. This was again in contravention of the provisions of sections 9 and 95 of the Factories Act read with rules 13 (i) (f) of the Bihar Factories Rules, 1950. 9. On the basis of the above allegation, the learned CJM took cognizance of the offence under section 92 of the Factories Act and order for issue of summons was passed on 24.2.2001 and the case was transferred to Sri. A.K. Singh J.M. for disposal. 10. Thereafter on 4.6.2002,a petition under section 205 Cr.P.C was tiled on behalf of the petitioner by his counsel before the learned trial court stating inter alia that he came to know about the pendency of the case from the other co-accused. No summons were received by him. The petitioner is the Chairman-cum-Managing Director of Indian Explosive Ltd. having head office at New Delhi and he does not look after the day to day affairs of the factory under construction in question. No summons were received by him. The petitioner is the Chairman-cum-Managing Director of Indian Explosive Ltd. having head office at New Delhi and he does not look after the day to day affairs of the factory under construction in question. If he is directed to appear day to day from New Delhi in that Indian Explosive Ltd. shall incur great loss financially as well as of policy matters of the company will be hampered in absence of the petitioner. He always remains busy and occupied with the urgent matters of the company. He undertakes to appear personally as and when so directed specially at the time of explaining the accusation or at the time of recording statement under section 313 of Cr.P.C. and on the date of the judgment. 11. The learned trial court by the impugned order, rejected the prayer of the petitioner on the ground the as the warrant of arrest has already been issued and that the petitioner will have no real inconvenience in appearing in court as on any unavoidable circumstances, it will be open to avail the facility under section 317 Cr.P.C. 12. The learned counsel for the petitioner Mr.A.K. Sahani has submitted that the summons was in fact issued for the first time on 15.5.2001. Awaiting service of summons, the case was adjourned on 9.8.2001. and on 19.10.2001 and then on the next date i.e. on 2.2.2002, though no service report was received, without waiting for the service report, the learned trial court ordered issue warrant of arrest, which in fact was issued on 23.4.2002,which is illegal. In this regard learned counsel for the petitioner has relied on decision of Patna High Court reported in 1996(2)E. Cr. Cases 399. 13. The learned counsel next contended that even from the allegations made in the complaint, the petitioner who is the Chairman-cum-Managing Director of Indian Explosive Ltd. a Govt. of India concern having head office at New Delhi has no concern with the day to day affairs regarding construction of the factory in the district of Dhanbad. Rather it appears from the complaint itself that in fact Sri. of India concern having head office at New Delhi has no concern with the day to day affairs regarding construction of the factory in the district of Dhanbad. Rather it appears from the complaint itself that in fact Sri. S.C. Mandal was in charge of the factory under construction and the case being trivial in nature, it was not necessary at all for the petitioner to appear day to day and as such it was a fit case in which the trial court have exercised the powers under section 205 Cr.P.C. for exemption of the petitioner from his personal appearance. 14. Patna High Court in the case of Dr. Prem Agrawal vs. The State of Bihar reported in 2001 (3) East Cr. C. 87 (patna) has held that Section 205 of the Cr.P.C. is a provision which protects the accused person from the wrath of overzealous complainants, who want that on their brought before the Court Section 205 is concerned between the accused and the concerned judge. The complainant in a given case may not have any right to oppose the applicant, if the accused convinces the court that his presence would not be necessary. The Supreme Court in a case of Bhaskar Industries Ltd. vs. Bhiwani Denim and Apparels Ltd. and Ors. reported in (2001) 7 S.C.C. 401 has held that if it appears to the court that accused, (sic) the court may dispense with his personal attendance either throughout or at any particular stage of the proceedings, after taking an undertaking from him that he would not dispute his identity. Main concern of the court proceeding should register progress. In the case of Mahadevan Balasubramaniam vs. State of Jharkhand and Anr. reported in 2002 (2) JLJR 386 this court has held that the privilege of exemption from the personal appearance may not be granted at the cost of the delay in disposal of the case even if it is summon triable case but in a case of minor and trivial nature an application under section 205 for exemption in appearance on each and every date ought to be allowed and the petition should be liberally dealt with. 15. 15. Considering the facts of the case, submission of the parties, decision referred to above and on perusal of the impugned order, I find that the learned court below has erred in law in rejecting the petitioner under section 205 of Cr. P.C. only on the ground that warrant of arrest has already been issued against the petitioner. As a matter of fact issuance of warrant of arrest is not bar in exercising of power under section 205 of Cr.P.C. if the court finds it to be a fit case in which exemption should be allowed. In the present case the petitioner being the Chairman-cum- Managing Director of the Indian Explosives Ltd. having head office at New Delhi was not at all required to be personally present day to day in court in connection with the present case in which he is being prosecuted for offence alleged which are minor and trivial in nature and other on the ground that assignment of the petitioner as such that he is required to move around different places in connection with the job and therefore, it is a case in which learned trial court should have exempted the petitioner from appearing personally day to day in the case. 16. In the result this application is allowed and the order of the learned Magistrate dated 27.6.2002 is quashed and the petitioner is exempted from his personal appearance in the case before the court below with a condition that he shall appear before the court below as and when required by the court and if he fails to appear the trial court shall take appropriate steps for his personal appearance.