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2009 DIGILAW 72 (CHH)

FIROZ ALAM v. STATE OF C. G.

2009-02-28

T.P.SHARMA

body2009
ORDER 1. This petition is for quashrnent of criminal proceeding pending before the Judicial Magistrate First Class, Tilda, in Climinal Case No.60/2008. 2. I have heard learned counsel for the parties and perused copy of charge sheet, copy of order dated 31-7-2008 passed by the Judicial Magistrate First Class, Tilda relating to dismissal of application for discharge of the accused, copy of order dated 22-11-2008 passed by the Special Judge & 1st Additional Sessions Judge, Raipur in Criminal Revision No. 193/2008 and copies of other documents. 3. Prosecution case in nutshell is that the applicant is occupier of Arsh Iron & Steel Private Limited situated at Sarora, Tehsil Tilda, Distt. Raipur. One Bablu Tiwari (since deceased) who was employee of the applicant in the said factory sustained burn injuries on 25-12-2006 and as a result of the burn injuries received in the factory premises while working in the factory, Bablu Tiwari died on 30-12-2006. Prosecution for the offence punishable under Section 7 A (2) (c) of the Factories Act, 1948 read with Rule 73 of the Chhattisgarh Factory Rules, 1962 and Section 88 of the Factories Act, 1948 read with Rules 108 (1) & 108 (4) of the Chhattisgarh Factory Rules, 1962 was launched against the applicant. On his admission the applicant was convicted & sentenced to pay fine of Rs.50,000/-, in default of payment of fine to undergo S.L for 40 days by the Judicial Magistrate First Class (Labour Court), Raipur in Criminal Case No.62112007. Subsequently, prosecution for offence punishable under Section 304A of the LP.C was investigated upon and charge sheet was filed before the Judicial Magistrate First Class, Tilda. The applicant filed an application for his discharge under Section 245 (2) of the Code of Criminal Procedure, 1973 (for short 'the Code') on the ground that the accused/applicant has been convicted by the competent Court under Section 92 of the Factories Act, 1948 and subsequent trial for the same offence or on the san1e facts for any other offence is not competent in accordance with Section 300 of the Code. After affording opportunity of hearing to the parties, the trial Court has rejected the application and same was affirmed in criminal revision. 4. After affording opportunity of hearing to the parties, the trial Court has rejected the application and same was affirmed in criminal revision. 4. Learned counsel for the applicant submitted that according to the case of the prosecution before the Judicial Magistrate First Class (Labour Court), the accused has not made proper arrangement and has not taken proper precautions in his factory and as a result of such omission deceased Bablu Tiwari died due to bum injuries which is punishable under Section 92 of the Factories Act, 1948. He further submitted that according to the prosecution the applicant has caused death of the deceased by his negligent act of not taking proper precautions in his factory, both the facts and offence are one and the same but punishable under the provisions of different Acts. Once the applicant has been convicted & sentenced under Section 92 of the Factories Act, 1948 which is a special Act having overriding effect, he is not liable for any trial or punishment for the same facts or same offence under the provisions of different Act and any trial or conviction would be double jeopardy not permissible in accordance with Section 300 of the Code & Article 20 (2) of the Constitution of India. Learned counsel placed reliance in the matter of lnder Mohan Goswami & Anr. Vs. State of Uttaranchal & Drs.1 in which it has been held by the Apex Court that criminal proceedings in civil dispute is abuse of process of Court and same is liable to be quashed in exercise of inherent jurisdiction under Section 482 of the Code. Learned counsel further placed reliance in the matter of Manipur Administration, Manipur Vs. Thokchom Bira Singh2 in which it has been held by the Apex Court that person cannot be tried again on the same facts. Learned counsel also placed reliance in the matter of Ashwini Kumar Singh and another Vs. State of Jharkhand in which the Jharkhand High Court has held that after trial and conviction under Section 92 of the Factories Act, 1948 for contravention of the provisions of the said Act, the accused is not liable for trial or conviction under Sections 287,288,338 & 304A of the I.P.C. 5. State of Jharkhand in which the Jharkhand High Court has held that after trial and conviction under Section 92 of the Factories Act, 1948 for contravention of the provisions of the said Act, the accused is not liable for trial or conviction under Sections 287,288,338 & 304A of the I.P.C. 5. On the other hand, learned counsel appearing on behalf of the State supported the order impugned and submitted that under the provisions of the Factories Act, 1948 the applicant was required to take necessary precautions in order to secure the life of the persons employed in his factory and breach or violation of such provisions of the Factories Act, 1948 or the Rules made thereunder is punishable under Section 92 of the Factories Act, 1948, but offence punishable under Section 304A of the I.P.C. is a separate and distinct offence causing death by negligent act, both are not based on one and the same facts, therefore, separate prosecution of the applicant for offence punishable under Section 304A of the I.P.C. is permissible under the law and it is not bar under Section 300 of the Code & Article 20 (2) of the Constitution of India. 6. In the instant case, the accused has been convicted under Section 92 of the Factories Act, 1948 for violation of Rule 73 of the Chhattisgarh Factory Rules, 1962. Rule 73 of the Chhattisgarh Factory Rules, 1962 reads as follows:- "73. Protective appliances.-(1) Suitable protecting devices such as tight fitting clothes, foot-wears, gloves, finger guards, goggles, head gears, life-belts, scaffoldings, non-skid ladders, respirators, gas masks, etc. shall be maintained and used on all such process which are likely to cause injuries to workers. if not used. (2) All personal protective appliances provided to the workers as required under any of the provisions of the Act or the rules shall have certification of ISI." Section 7 A (2) (c) of the Factories Act, 1948 reads as follows:- "(2) Without prejudice to the generality of the provisions of sub-section (1), the matters to which such duty extends, shall include- (c) the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work:" The Factories Act, 1948 is having overriding effect over any other law. Section 119 ofthe Factories Act, 1948 reads as follows:- "119. Section 119 ofthe Factories Act, 1948 reads as follows:- "119. Act to have effect notwithstanding anything contained in Act 3 7 of 1970--- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Contract Labour (Regulation and Abolition) Act, 1970, or any other law for the time being in force." Presently the accused is facing trial for offence punishable under Section 304A of the I.P.C. which reads as follows:- "304A. Causing death by negligence-Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 7. Occupier of the factory is required to make arrangement of suitable protective devices in accordance with Rule 73 of the Chhattisgarh Factory Rules, 1962. Occupier ofthe factory shall also ensure compliance of the provisions of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work. It is clear from the combined reading of Section 7 A (2) (c) of the Factories Act, 1948 & Rule 73 of the Chhattisgarh Factory Rules. 1962 that occupier of the factory is required to make arrangement of suitable protective devices and ensure compliance of the provisions of such information, instruction training and supervision as are necessary to ensure the health and safety of all workers. Occupier of the factory is duty bound to ensure the aforesaid provisions to run the factory safely. In accordance with Section 304A of the I.P.C, if any person causes the death of any person by doing any rash and negligent act not amounting to culpable homicide, he will be liable for punishment under Section 304A ofthe I.P.C. 8. The provision of Article 20 (2) of the Constitution of lndia is based on the well known maxim nemo debet his vexari, ('Ii constant curiae quod sit) pro una et eadem causa means no one ought to be vexed twice if it appears to the Court that it is for one and the same cause. Article 20 (2) of the Constitution of India expressly provides that: "No, one shall be prosecuted and punished for the same offence more than once. "9. Article 20 (2) of the Constitution of India expressly provides that: "No, one shall be prosecuted and punished for the same offence more than once. "9. Section 300 (1) of the Code saves the person from double jeopardy for the same offence or on the same facts, but a person may be tried and convicted or acquitted twice for distinct offences. As has been held by the Apex Court in the matter of The State o.(Bombay Vs. SL. Apte and another4 offence under Section 409 of the I.P.C. and offence under Section 105 of the Insurance Act of same facts are not one and the same and they are distinct offences, two trials are not barred. While dealing with the same question. the Apex Court has held in the case of Mohinder Singh Vs. State of Pu'?iab5 that offence punishable under Sections 399 & 402 of the I.P.C. and Section 3 of the TADA Act is distinct from offence punishable under Section 25 of the Arms Act & Section 5 of the TADA Act. While dealing with the same question in the case of VK. Agarwal Vs. Vasantraj Bhagwanji Bhatia and other the Apex court has held that offence under Sections 111 & 135 of the Customs Act. 1962 is distinct from offence under Section 85 of the Gold (Control) Act, 1968. 10. In the instant case offence under Section 7 A (2) (c) of the Factories I Act. 1948 read with Rule 73 of the Chhattisgarh Factory Rules, 1962 and Sections 88,92 of the Factories Act, 1948 read with Rules 108 (1) & 108 (4) of the Chhattisgarh Factory Rules, 1962 are mainly related to taking necessary steps for safety of the persons employed in the factory with a view to save them from any casualty and offence of causing death by doing any rash & negligent act punishable under Section 304A of the I.P.C. is distinct from offence under Section 92 of the Factories Act, 1948. A person may be tried for offence punishable under Section 92 of the Factories Act, 1948 as well as under Section 304A of the I.P.C. separately and both the offences are not one and the same or not based on same facts. The Court below has rightly rejected the application for discharge of the applicant and it has not committed any illegality or infirmity in the order impugned. 11. The Court below has rightly rejected the application for discharge of the applicant and it has not committed any illegality or infirmity in the order impugned. 11. For the foregoing reasons, the petition is liable to be dismissed and it is hereby dismissed. Petition Dismissed.