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2007 DIGILAW 198 (UTT)

KHEM RAM v. STATE OF U. P. (now Uttarakhand)

2007-04-18

DHARAM VEER

body2007
Judgment This Criminal Revision has been filed against the judgment and order dated 21.8.1997 passed by Special Judge, Nainital in Criminal Appeal No. 40 of 1996 affirming the judgment and order dated 15.11.1996 passed in Criminal Case No. 334 of 1995 by the Chief Judicial Magistrate, Nainital, whereby the revisionists had been convicted and sentenced U/s 92 of the Factories Act, 1948 and each of them was also directed to pay a fine of Rs. 30,000/-, failing which, to undergo simple imprisonment for three months. 2. Brief facts giving rise to the present revision are that a complaint was filed U/s 92 of the Factories Act, 1948 by Assistant Director (Factories) U.P. against the revisionists to the effect that on 30.11.1994 at about 4.30 a.m., a worker –Shyam Lal – fell from the roof while working in the Regional Workshop of Roadways Department at Tanakpur. He was taken to Keshlata Hospital, Bareilly, where, at about 9 p.m. he succumbed to his injuries. According to the complainant, the information of the above accident was neither given to him either on Telephone or by telegram or Special Messenger as per rules nor information was given lateron in Proforma 18 within 12 hours of the accident. According to the Inspector, on 30.11.1994, at about 4.30 a.m., the work of repair was going on in the workshop of U.P. Roadways at Tanakpur and the deceased along with other workers was changing the asbestos-sheet of 30’ high roof. While he was changing the sheet, suddenly an old asbestos sheet under the foot of the deceased, slipped, due to which, he had lost his balance and feel head-on the ground in pucca floor. Due to such injuries, he died lateron in the hospital. The complainant has also stated in his complaint that there were chances of failing down while repairing 30’ high roof and the concerned authorities have not adopted necessary safety measures of fencing and other safety arrangements to avoid the accident. The worker was also not provided with safety-belt and helmet. Due to non-adoption of safety arrangements, the worker Shyam Lal died. These short-comings were noticed by the complainant during the inspection of the workshop, which were mentioned, in his report dated 15.12.1994. 3. On the above complaint, the Chief Judicial Magistrate, Nainital, found sufficient material to summon the revisionists before the Court. Accordingly, he summoned both of them. Due to non-adoption of safety arrangements, the worker Shyam Lal died. These short-comings were noticed by the complainant during the inspection of the workshop, which were mentioned, in his report dated 15.12.1994. 3. On the above complaint, the Chief Judicial Magistrate, Nainital, found sufficient material to summon the revisionists before the Court. Accordingly, he summoned both of them. Both the accused persons, appeared before the Court and denied the prosecution version. They further stated that they had taken sufficient safety measures to avoid the accident. 4. In support of the prosecution case, complainant A.K. Gupta examined himself as P.W.1. He has stated that on 30.11.1994 at 4:30 p.m., the work of changing the asbestos sheet on the roof was going on Deceased Shyam Lal along with other labourers was working. All of a sudden, an old sheet under the foot of the deceased slipped and he fell head-on on the ground in pucca floor. Due to the injuries sustained by the deceased, he died on 30.11.1994 in the hospital. There was probability of falling down of the deceased from the roof but the sufficient safety measures of fencing etc. were not taken. For safety purposes, there should have been provision of safety-belt and helmet for the workers. The information of the accident was not given to the department. According to the complainant, he recorded the statements of Sheru Tamta, Lalit Prasad, Bhoop Ram, Sunder Lal and Sheem Ram. In his cross-examination, the complainant has deposed that he tried his level best to collect the materials regarding the death of deceased worker – Shyam Lal. He recorded the statements of the witnesses, gathered information from the Police Station and Hospital. He admitted that in ‘Amar Ujala’ daily, the name of deceased was written as Harish Chandra. He also stated that in his report, he had mentioned the addresses of the witnesses examined by him. He admitted that during the course of enquiry, it came to his knowledge that the deceased worker was in the employment of the contractor. He denied the allegation that he did not conduct the enquiry as per rules. 5. No other witness was examined by the complainant. 6. In his statement under Section 313, Cr.P.C., accused Khim Ram stated that the worker was under the employment of a Contractor and his death did not take place in the Workshop. He denied the allegation that he did not conduct the enquiry as per rules. 5. No other witness was examined by the complainant. 6. In his statement under Section 313, Cr.P.C., accused Khim Ram stated that the worker was under the employment of a Contractor and his death did not take place in the Workshop. He showed his ignorance about the fact whether deceased worker Shyam Lal died in the hospital or not. Accused Dharam Singh stated that Shyam Lal fell at the spot but he was not aware about his name. 7. The accused – revisionists have examined D.W.1 Pramod Kumar in his defence, who stated that he was Junior Engineer in U.P.S.R.T.C. Workshop at Tanakpur. According to him the work of repair of the Workshop was given to M/s Bajrang Builders on 16.08.1994. The proprietor of the firm was Umesh Gupta. He handed over the workshop for undertaking repairs to Umesh Gupta. In his cross-examination, he admitted that the agreement was not registered. He also stated that he came on transfer in the workshop after the accident. 8. After hearing learned counsel for the parties and perusing the materials available on the record, the Chief Judicial Magistrate, Nainital held the accused – revisionists guilty U/s 92 of the Factories Act and imposed fine of Rs. 30,000/- each to them and in default of payment of fine, they were directed to undergo simple imprisonment of three months each. By the impugned order, the learned Special Judge, Nainital, affirmed the judgment of the Chief Judicial Magistrate, Nainital. 9. Feeling aggrieved, the revisionist have filed the present revision against the judgments and orders of the Court below. 10. I have heard learned counsel for the parties and have gone through the records of the case. 11. The learned counsel for the revisionist has submitted that the findings of the Court below are improper, arbitrary and illegal and are clearly against the well-established principles of law as there was no evidence that ‘Shyam Lal’ died in an accident on 30.11.1994 as in the report, the name of the person, who died on 30.11.1994 in the accident, was shown as ‘Harish Chandra’. It is also submitted that the Additional Chief Inspector having come to know of the accident on 03.12.1994, the complaint on 15.03.1995 was clearly time barred u/s 106 of the Factories Act, 1948. 12. The learned Addl. It is also submitted that the Additional Chief Inspector having come to know of the accident on 03.12.1994, the complaint on 15.03.1995 was clearly time barred u/s 106 of the Factories Act, 1948. 12. The learned Addl. Government Advocate has also conceded that as per Section 106 of the Factories Act no court is competent to take cognizance of any offence punishable under Factories Act unless the complain thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of the Inspector. 13. Section 106 of the Factories Act, 1948 reads as under: “106. Limitation of prosecutions – No court shall take cognizance of any offence punishable under this Act unless complaint thereof is made with in three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector: Provided that where the offence consists of disobeying a written order made by an Inspector, complaint thereof may be made within six months of the date on which the offence is alleged to have been committed.” 14. In the present case, the news of the accident came to knowledge of the Assistant Director Factories, Uttar Pradesh, Nainital Region, Haldwani and the Deputy Director Factories, U.P. Bareilly Region, Bareilly on 03rd December, 1994, as is evident from Ex.Ka.1 and the complaint in this regard was made on 13th March, 1995 in the Court of Chief Judicial Magistrate, Nainital, who took cognizance of the matter on the same day i.e. 13th March, 1995. Thus, it is clear that the cognizance of the case was taken beyond the period of three months of the date on which the alleged commission of the offence came to the knowledge of Assistant Director Factories, Uttar Pradesh, Nainital Region, Haldwani and the Deputy Director Factories, U.P. Bareilly Region, Bareilly. 15. In vies of the above, it is clear that the impugned judgments and orders of the trial court as well as the appellate court suffer from material irregularity and call for interference by this Court. As the cognizance of the offence was taken beyond the prescribed period of three months of the date on which the alleged commission of the offence came to the knowledge of Assistant Director Factories, Uttar Pradesh, Nainital Region, Haldwani, judgments of the courts below are liable to be set aside. 16. As the cognizance of the offence was taken beyond the prescribed period of three months of the date on which the alleged commission of the offence came to the knowledge of Assistant Director Factories, Uttar Pradesh, Nainital Region, Haldwani, judgments of the courts below are liable to be set aside. 16. Consequently, the revision is allowed and the judgments and orders – dated 15.11.1996 passed by the Chief Judicial Magistrate, Nainital and dated 21.08.1997 passed by Special Judge, Nainital are hereby set aside.