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2009 DIGILAW 1021 (JHR)

H. M. P. Singh v. State of Jharkhand

2009-07-23

PRASHANT KUMAR

body2009
JUDGMENT : This application is for quashing the order dated 16.01.2003 passed by C.J.M., Bokaro in F.A. Case No. 1 of 2003 whereby and whereunder he took cognizance of the offence under the Factories Act, 1950 (hereinafter referred to as the ‘Act’). 2 It is alleged that on 15.10.2002 at 13.30 hours an accident took place in the Steel Melting Shop No. 2 of Bokaro Steel Plant, while a Crane was operating in the said plant. In that accident one worker, namely, Chandrika Prasad died. It is stated that notice of aforesaid accident was given to the Inspector of Factories on 16.10.2002. It is further stated that thereafter the Inspector of Factory, Bokaro inspected the Factory Premises on 19.10.2002, 22.10.2002, 24.10.2002 and 28.10.2002 and found that as per the provisions contained under section 29 of the aforesaid ‘Act’ read with Rule 56A of the Bihar Factories Rules, the Crane had not been thoroughly examined by competent person and the examination report had also not been entered in the relevant registers. It is stated that the inspector further found that the workers were asked to work in dangerous and insecure condition which was violative of Rule 55A of Bihar Factory Rules, 1956. Accordingly, it is stated that the aforesaid acts and omission of accused persons is punishable under section 92 of the Factories Act. Accordingly a complaint was filed on 16.1.2003 in the Court of CJM, Bokaro. On the basis of materials available in the complaint petition, learned CJM vide his order dated 16.01.2003 took cognizance of the offence. 3. It is submitted by Sri Rajiv Ranjan, learned counsel for the petitioners that the notice regarding the accident was received in the office of Inspector of Factories on 16.10.2002, therefore, it will be presumed that the Inspector had knowledge about the commission of offence on 16.10.2002. It is submitted that as per section 106 of the Factories Act it is imperative for the court to take cognizance within three months of the date on which alleged commission of the offence came to the knowledge of Inspector. It is submitted that it is settled law that three months, under section 106 of Factories Act means 90 days calculated @ 30 days per month. It is further submitted that in the instant case, cognizance was taken by the CJM on 16.1.2003. It is submitted that it is settled law that three months, under section 106 of Factories Act means 90 days calculated @ 30 days per month. It is further submitted that in the instant case, cognizance was taken by the CJM on 16.1.2003. It is submitted that admittedly 16.1.2003 is beyond the period of 90 days from 16.10.2002. Accordingly, it is submitted that the impugned order is barred by limitation. It is next submitted that as per section 92 of the aforesaid Act, occupier and manager of the Factory are liable to be punished for the offence committed under the Act. It is submitted that petitioner no. 3 is neither the manager nor the occupier of the factory and therefore no case is made out against him. Hence the cognizance order so far it relates to petitioner no. 3, is an abuse of the process of the court. Accordingly, it is submitted that the impugned order cannot be sustained by this Court. 4. On the other hand, learned Additional P.P. submits that the Inspector had received no knowledge of the offence from the notice served upon him on 16.10.2002. It is submitted that in the said notice it is not mentioned that concerned factory had contravened mandatory provisions contained under section 29 of the Factories Act read with Rule 56A of the Bihar Factories Rules. It is submitted that said facts came to the knowledge of the Inspector, when he inspected the factory after receiving notice of accident. It is submitted that the Inspector visited the factory on 19.10.2002, 22.10.2002, 24.10.2002 and 28.10.2002 and found contravention of section 29 of the Act read with Rule 56A of the Bihar Factories Rules. Accordingly, it is submitted that commission of offence came to the knowledge of Inspector on the date of inspection. It is submitted that if 90 days is counted from the first date of inspection/ enquiry, impugned order of cognizance is within time. It is further submitted that the accident took place in Steel Melting Shop No. 2 of Bokaro Steel Plant and petitioner no. 3 is General Manager of that plant. Thus, he is Manager within the meaning of section 92 of the Act. In that view of the matter, the court below had rightly taken cognizance against the petitioner no. 3. 5. Having heard the submission, I have gone through the materials available on record. 3 is General Manager of that plant. Thus, he is Manager within the meaning of section 92 of the Act. In that view of the matter, the court below had rightly taken cognizance against the petitioner no. 3. 5. Having heard the submission, I have gone through the materials available on record. It is admitted position that the accident took place on 15.10.2002 in Steel Melting Shot No. 2 of Bokaro Steel Plant in which one worker, namely, Chandrika Prasad died. The report regarding the said accident was given to the Inspector of Factory on 16.10.2002. Thereafter the Factory premises was inspected by the Inspector on 19. 10.2002, 22.10.2002, 24.10.2002 and 28.10.2002. Then the Inspector found contravention of section 29 of the Act read with Section 55A and 56A of the Bihar Factories Rules, 1950. Accordingly, he filed complaint in the court of CJM, Bokaro on 16.1.2003 and the CJM, Bokaro took cognizance of the offence on that date itself. 6. Now the question arose for determination as to whether the order taking cognizance is barred by limitation? Section 106 of the Factories Act reads as follows:- 106. Limitation of prosecution.-No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within 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. [Explanation.-For the purposes of this section- (a) in the case of a continuing offence, the period of limitation shall be computed with reference to every point of time during which the offence continues: (b) where for the performance of any act time is granted or extended on an application made by the occupier or manager of a factory, the period of limitation shall be computed from the date on which the time so granted or extended expires.] Thus the aforesaid provisions make it imperative for court to take cognizance of the offence punishable under the Factories Act within three months from the date on which the alleged commission of the offence came to the knowledge of Inspector. 7. 7. In the complaint petition it is alleged that the accused persons had contravened the provisions of section 29 of the Factories Act read with section 55A and 56A of the Bihar Factories Rule, 1950, thus, they are liable to be punished under section 92 of the Factories Act. From perusal of Annexure-2, by which the Inspector received information of accident, I find that it is no where stated that the authorities of the Factory had contravened the provisions contained under section 29 of the Factories Act read with section 55A and 56A of the Bihar Factories Rules. Under the said circumstance, it cannot be accepted that Inspector came to know about the commission of offence when he received information about the accident. 8. On the contrary, it appears that after receiving the information of the aforesaid accident, Inspector visited factory and made enquiry on different dates from 19.10.2002 to 28.10.2002 and he came to know that the authorities of the Factory had not thoroughly examined the Crane by a competent person as provided U/s 29 of the Act and were also not keeping a register containing the prescribed particulars of every such examination. It is relevant to mention that an accident is not punishable under Factory Act, rather contravention of the provisions of section 29 of the Act read with Rule 55A and 56A of the Bihar Factories Rule is punishable U/s 92 of Factory Act. In my view, said contravention came to the knowledge of Inspector from 19.10.2002 to 28.10.2002, when he visited the Factory and held enquiry after receiving information of accident. Thus as per the provisions of section 106 of the Factory Act, even if 90 days counted from 19.10.2002 ( first dater of enquiry) the impugned order is within time. 9. Their Lordships of Supreme Court in P.D. Jambekar Vs. State of Gujrat reported in (1973)3SCC524 had uphold the conclusion of Gujrat High Court that the Inspector did not get any knowledge of the commission of an offence under the Act from the report, he got the knowledge of the commission of offence only on the date of the enquiry. 10. In the instant case, the date of enquiry is from 19.10.2002 to 28.10.2002, and cognizance taken on 16.1.2003. Thus, in my view, the order of cognizance is within time. 11. The next contention of learned counsel for the petitioner that petitioner no. 10. In the instant case, the date of enquiry is from 19.10.2002 to 28.10.2002, and cognizance taken on 16.1.2003. Thus, in my view, the order of cognizance is within time. 11. The next contention of learned counsel for the petitioner that petitioner no. 3 is not the manager appears to be misconceived. In the complaint petition, the designation of Accused No. 3, S.M. Mohanty was given as General Manager, Steel Melting Shop, Bokaro Steel Plant. It is admitted position that the accident took place in Steel Melting Shop. In my view, manager of a factory includes the General Manager. Thus the petitioner no. 3, who is General Manager of the Factory, where accident took place, can be proceeded under section 92 of the Factories Act. Therefore, aforesaid contention is liable to be rejected. 12. In view of the discussions made above, I find no merit in this application; therefore, the same is dismissed.