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2010 DIGILAW 592 (KAR)

K. v. Ashraf Hussain VS State of Karnataka

2010-04-23

ARALI NAGARAJ

body2010
Judgment :- (This Crl.P is filed U/S 482 of Cr.P.C., praying to set aside the entire proceedings initiated against the petitioners in CC No.962/2006 on the file of the Civil Judge (Jr.Dn) & JMFC, Kunigal.) Petitioner Nos.1 and 2 herein, who are respectively accused Nos.1 and 2 in CC No.962/2006 on the file of the learned Civil Judge (Jr.Dn.) and JMFC, Kunigal, Tumkur District (hereinafter referred to as ‘Trial Court’ for short) have sought for quashing of the entire proceedings in the said case. 2. Though this matter was listed on 31.1.2010 for admission, it was taken for final disposal and the arguments of Sri R Jayaprakash, the learned counsel for the petitioners – accused and Sri Vijayakumar Majage, the learned High Court Government Pleader for the respondent – State were heard on merits. The averments in the complaint filed by the Inspector of Factories before the Trial Court and other materials placed on record by the learned counsel for the petitioners were perused. 3. The final order was dictated in this case on 31.3.2010 in the open court and the present petition came to be dismissed on merits. Thereafter, on 8.4.2010, before the final order, as dictated on 31.3.2010, could be transcribed by the judgment writer and signed by me, the learned counsel for the petitioners got this matter listed for Being Spoken To. On that day, he submitted that during his arguments on 31.3.2010, he could not refer to the provisions of Section 300 Cr.PC, which provides that a person being tried and acquitted in an earlier case cannot be tried in a subsequent case either for the same offence or for any other offence on the same set of facts on which he was tried and acquitted in the earlier proceedings and therefore the final order dictated in this case on 31.3.2010 be recalled and further opportunity be given to him for submitting further argument with reference to Section 300 Cr.PC. Accepting the said submission of the learned counsel for the petitioners, the order that was dictated on 31.3.2010, which was not yet transcribed and signed, was recalled and opportunity came to be given to the learned counsel for the petitioners for making his further submissions with reference to the provisions of Section 300 Cr.PC. Further arguments of both the sides are heard. 4. Further arguments of both the sides are heard. 4. Stated in brief the facts leading to the present petition are as under: (a) The 2nd petitioner herein viz: A Lohidakshan, the Manager of the Factory belonging to the 1st petitioner, viz: K V Ashraf Hussain, and one Umesh s/o.Chandrashekaraiah, an employee of the 1st petitioner in his factory, were prosecuted in CC No.61/2007 on the file of the learned Civil Judge (Jr.Dn.) and JMFC, Kunigal, for the offence under Section 304A IPC on the ground that the said accused did not properly fence the transmission machinery in the said factory and therefore one Smt.Gowramma, who was employed in the said factory, came into contract with transmission machinery, sustained fatal injuries and died. After trial, the Trial Court acquitted both the said accused in the said case, of the offence under Section 304A IPC. (b) The Factory Inspector has filed his subsequent complaint under Section 200 Cr.PC before the same leaned Civil Judge (Jr.Dn.) and JMFC, Kunigal against the present petitioner Nos. 1 and 2 respectively, K V Ashraf Hussain, the occupier of the said factory and A Lohidakshan, the Manager thereof, alleging that by not properly fencing the transmission machinery in the said factory, they contravened the provision of Section 21(1)(iv)(b) of the Factories Act, 1948 (for short ‘Factories Act’), which is punishable under Section 92 of the said Act. (c) The Trial Court took cognizance of the said offence and issued process against both the petitioners. Accordingly, CC No. 962/2006 came to be registered against these petitioners for the said offence. Therefore, the petitioners herein, who are respectively accused Nos. 1 and 2 in the said case (CC No. 962/2006), have filed the present petition under Section 482 Cr.PC seeking quashing of the entire proceedings in the said case. 5. Accordingly, CC No. 962/2006 came to be registered against these petitioners for the said offence. Therefore, the petitioners herein, who are respectively accused Nos. 1 and 2 in the said case (CC No. 962/2006), have filed the present petition under Section 482 Cr.PC seeking quashing of the entire proceedings in the said case. 5. Sri R Jayaprakash, the learned counsel for the petitioners, strongly contends that the 2nd petitioner herein was tried by the same Court along with another accused viz: Umesh, an employee in the said factory in CC No. 61/2007 for the offence under Section 304A IPC in respect of the death of the said Smt. Gowramma, who was also an employee in the said factory, on the ground that she died as a result of the injuries sustained by her due to she coming into contact with the transmission machinery in the said factory which was not securedly fenced by these petitioners, of whom petitioner No. 2 was one of the accused therein, and therefore, the present criminal case (CC No. 962/06) registered against the petitioners herein for the offence under the Factories Act, on the same set of facts, cannot be allowed to be continued in view of the provisions of Section 300 Cr.PC. 6. Per contra, the learned High Court Government Pleader contends that the offence alleged against the petitioners No. 1 and 2 herein is punishable under Section 92 of the Factories Act, for which no charge was framed against petitioner No. 2 and the petitioner No. 1 was not one of the accused in the said earlier case and as such these petitioners were not tried in CC No. 61/2007 for this offence under the Factories Act and therefore the said offence, being quite distinct form the one under Section 304A IPC for which the 2nd petitioner herein was tired and acquitted, hence the proceedings in the present CC No. 962/2006 cannot be quashed as prayed for by the petitioners. 7. 7. It is not in dispute that the offence under Section 304A IPC for which petitioner No. 2, the Manager of the said factory, was tried and acquitted and also the offence under Section 21(1)(iv)(b) of the Factories Act, for which the 2nd petitioner and the 1st petitioner respectively being the Manager and occupier of the said factory are sought to be tried are based on the same fact i.e. failure on their part to sacredly fence the transmission machinery in their factory. 8. The petitioners herein, respectively being the occupier and Manager of the said factory are alleged to have failed to sacredly fence the transmission machinery and therefore the deceased Smt. Gowramma, who came into contact with it sustained fatal injuries and died. Therefore, the learned counsel for the petitioners strongly contends that since both the offences, the one under Section 304A IPC for which the 2nd petitioner herein was tried along with another employee of the factory and came to be acquitted of the said offence in the earlier case, and the alleged contravention of Section 21(1)(iv)(b) of the Factories Act which is punishable under Section 92 of the said Act, are based on the same set of facts, in view of Section 300 Cr.PC the subsequent prosecution case against both the petitioners herein cannot be permitted to be continued. 9. Section 300 Cr.PC reads as under: “S.300, Person once convicted or acquitted not to be tried for same offence (1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221 or for which he might have been convicted under sub-section (2) thereof. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the court by which he was discharged or of any other court to which the first mentioned court is subordinate. (6) Noting in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code. Explanation: The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purpose of this section.” 10. It is clear from the above provisions of Section 300 Cr.PC that a person, who has once been tried for an offence and convicted or acquitted of such offence, shall not be liable to be tried again for the same offence, or for any other offence on the same set of facts, for which a different charge from the one made against him might have been made under Section 221(1) or for which he might have been convicted under Section 221(2) of Cr.PC. It is not in dispute that the deceased, Smt.Gowramma, an employee in the said factory, died as a result of the injuries sustained by her by reason of she coming in contact with transmission machinery in the factory, which was alleged to have been not securedly fenced by the petitioners herein. It is not in dispute that the deceased, Smt.Gowramma, an employee in the said factory, died as a result of the injuries sustained by her by reason of she coming in contact with transmission machinery in the factory, which was alleged to have been not securedly fenced by the petitioners herein. The alleged failure on the part of these petitioners in securedly fencing the transmission machinery constitutes violation of the provisions of Section 21(1)(iv)(b) of the Factories Act, which is punishable under Section 92 of the said Act. Petitioner No.2, who was tried in the said earlier case could have been charged with this offence under Section 92 of the Factories Act along with the offence under Section 304A IPC in the said earlier case. 11. Further, it is not the case of the prosecution that the instant criminal case is instituted against these petitioners with the consent of the State Government as provided under sub-section 300 Cr.PC. It is also not the argument of the learned Government Pleader that this later case of the prosecution against these petitioners falls under any of sub-sections (3), (4) and (5) of Section 300 Cr.PC. 12. In the case of Thakur Ram and Others vs The State of Bihar reported in AIR 1966 SC 911 , the relevant observation of the Hon’ble Supreme Court made at para No.7 of its judgment reads as under: “The provisions of Section 403(1) bars trial of the person again, not only for the same offence but also for any other offence based on the same facts.” The above observations were made by the Hon’ble Supreme Court with reference to Section 403(1) of the Code of Criminal Procedure, 1898, which corresponds to the present Section 300 Cr.PC, 1973. 13. Further, in the case of Janapati Krishna vs State of A P reported in 2005 Crl.LJ 1187, relied upon by the learned counsel for the petitioners, the High Court of Andhra Pradesh has observed at paragraph – 15 therein as under: “15. A careful reading of the material available on record would go to show that virtually on the same set of facts and basing on the same evidence, the trial in SC No.51/1997 was conducted, which had resulted in an acquittal. The only additional factor in the present trial appears to be that the dying declaration-Ex.P-8 was proved by examining PW-9. A careful reading of the material available on record would go to show that virtually on the same set of facts and basing on the same evidence, the trial in SC No.51/1997 was conducted, which had resulted in an acquittal. The only additional factor in the present trial appears to be that the dying declaration-Ex.P-8 was proved by examining PW-9. On the strength of this additional factor, the learned Judge in the considered opinion of this Court is not justified in recording conviction under Section 306, IPC especially, in the light of the fact that the charges in relation to both the offences had been founded on the same set of facts. At any rate, it cannot be said there was an offence of abetment to commit suicide within the meaning of Section 107, IPC. Hence, viewed from any angle, the findings recorded by the learned Judge cannot be sustained and accordingly, the findings are hereby set aside.” 14. Further, in the case of the State of Tamil Nadu through Superintendent of Police CBI/SIT vs Nalini and others reported in 1999 Crl.LJ 3124, relied upon by the learned counsel for the petitioners, the Hon’ble Supreme Court has observed as under: “(J) Criminal P.C. (2 of 1974), S.300 – Bar against second trial on same facts – Criminal trial for offences under TADA along with other offender under Penal Code - Subsequent trial for offences under TADA based on same facts – Barred – Conviction of accused in subsequent trial set aside.” The Hon’ble Supreme Court has further observed at paragraph No.241 of the judgment as under: 241. “Section 300 has further widened the protective wings by debarring a second trial against the same accused on the same facts even for a different offence if a different charge against him for such offence could have been made under Section 22(1) of the Code or he could have been convicted for such offence under Section 221(2) of the Code.” 15. Following the above observations of the Hon’ble Supreme Court and the High Court of Andhra Pradesh in the above said cases relied upon by the learned counsel for the petitioners, I am of the considered opinion that the subsequent prosecution against the 2nd petitioner, who has been tried and acquitted of the offence under Section 304A IPC, on the same set of facts, based on which the subsequent prosecution sought for, cannot be permitted to be continued. 16. Petitioner No.1 is the occupier of the said factory and petitioner No.2 is its Manager. What was required to be proved by the prosecution in the said earlier case against the petitioner No.2, the Manager of the factory for the offence under Section 304A IPC and what is required to be proved by the prosecution in the instant case against both the petitioners herein for the offence under Section 92 read with Section 21(1)(iv)(b) of Factories Act is basically the same fact viz: “whether the transmission machinery in the factory was not securedly fenced as on the relevant date and time, by these petitioners respectively being the occupier and manager of the factory.” When the Trial Court, based on the entire evidence placed on record held that the said fact alleged against the accused therein, one of whom was the petitioner No.2 employed by petitioner No.1 as manager in his factory, was not proved by the prosecution, and the judgment and order of acquittal has attained finality, the instant prosecution cannot be continued against petitioner No.2 and, further, no purpose would be served by allowing the prosecution to be continued even as against petitioner No.1 (A1) only. Therefore, I am of the further opinion that the present prosecution cannot be permitted to be continued as against petitioner No.1 (accused No.1) also. For the reasons aforesaid, the present petition is allowed and all further proceedings in CC No.962/2006 pending on the file of the learned Civil Judge (Jr.DN.) and JMFC, Kunigal, are hereby quashed.